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Temporary Spousal Maintenance In New York

divorce attorneys on Long IslandIn October 2010, the State Legislature in New York enacted guidelines for calculating temporary spousal maintenance. The purpose of this new statute is to provide consistency in spousal maintenance awards by judges. The temporary maintenance law provides a formula by which the parties to a matrimonial lawsuit can determine what, if any, spousal maintenance is required to be paid on a temporary basis.

Temporary Maintenance Law Does Not Work

The temporary maintenance statute has not accomplished its goal. It has created more problems in divorce proceedings than it has resolved. The statutory formula replaced the prior system of determining temporary spousal maintenance which was based on the Court exercising its discretion after assessing the financial circumstances and the needs of the parties.

The intent of temporary spousal maintenance is to allow the non-moneyed spouse to maintain his or her standard of living that existed prior to the initiation of the divorce lawsuit. The legislature took action to draft a temporary maintenance statute because of the feeling that there was a lack of consistency and predictability by allowing Judges to determine each case on a case by case basis.

Bankrupting The Moneyed Spouse

In to in many cases the writer of this article has been involved with, the application of the temporary maintenance statute has financially ruined the moneyed spouse. This statute unfortunately over emphasizes the wages of the moneyed spouse. It does not take into consideration the financial needs of the parties and their actual living expenses. The formula does not take into consideration the payments for household expenses such as mortgage payments, electric payments, fuel oil, payments for internet service, telephone charges, maintenance of the property, child support and attorney’s fees during the course of litigation. The approach utilized by this statute does not accurately deal with the specific financial obligations and needs of the parties.

Rigid Formula Must Go!

The new maintenance statue needs to be revised. It is a rigid formula that denies the Court from having the necessary discretion to deal with the unique financial circumstances litigants are exposed to. In some situations spouses are receiving interim spousal maintenance awards in cases and at the conclusion, they receive no spousal maintenance. How can this be fair?maintenance and custody attorneys

Looking At Child Pornography Not A Crime

criminal defense attorneyIn May of 2012, New York’s highest court, the Court of Appeals, rendered a decision that a Marist College professor could not be held criminally responsible for the presence of child pornography on the hard drive of his computer. The Court held, the police and the prosecutors failed to show he knew the page had been assigned to the unused space on his computer.

Judge Carmen Beauchamp-Ciparick, in a majority opinion, in the case of People v. Kent, stated while James Kent had a theoretical ability to exercise dominion and control over the child pornographic images, that potential control was not enough to constitute “the procurement or possession” thereby not meeting the standard of a violation of the New York Penal law. She further stated, “some affirmative act is required (printing, saving, downloading, etc.) to show the defendant in fact exercised dominion and control over the images that were on his screen.” “To hold otherwise, would extend the reach of the [Penal Law] article 263 to conduct – viewing – that our legislature had not deemed criminal.” All criminal charges against Mr. Kent for possession of pornographic material were dismissed.

Computer Tech Personnel Find Pornography On Mr. Kent’s Computer

In 2007, Professor Kent was arrested. Professor Kent had complained his computer was operating slowly. Computer technology personnel found the pornographic images on his computer. He was convicted in a non-jury trial and was sentence to 1 to 3 years in prison for charges of felony child promotion and possession of sexual performances by a child. He appealed the matter to New York State’s highest court which reversed his conviction.

Judge Robert Smith stated, in his concurring opinion, “this is surely a stringent punishment for someone who many would think more pathetic and then evil.” He wrote further “nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective gave way to lessen or eliminate the trade. A policy of the most draconian enforcement directed at the most minor and peripheral of uses is no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs.” Smith went on to write, the legislature must decide on criminality in the conduct of the case, not the courts.assistance in criminal court matters

Extreme Hardship The Standard To Suspend Maintenance (Alimony) Payments

marriage and divorce attorneyJustice Dollinger, sitting in the Supreme Court in Monroe County, recently suspended a man’s spousal maintenance (alimony) because he found it would be “an extreme hardship” for him to continue to make these payments. Justice Dollinger stated in his opinion in the matter of Platt v. Platt, 2012 N.Y. Slip Op. 51583(U), “[w]e debate ‘extreme politics.’ Even the New York songster, Billy Joel, wondered – ‘darling I don’t know why I go to extremes.” Judge Dollinger, in his opinion, stated the legislature had not established a specific standard for “extreme hardship.” The Judge wrote “what constitutes an extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party.”

In the matter of Platt v. Platt, the judge found the husband was unemployed. He lived below the poverty level. In this case the wife also lived at the poverty level. Both the husband and wife were enduring extreme hardship. The Judge’s opinion stated “this Court cannot stretch the family resources beyond the dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line.”

Separation Agreement

Christine Platt and William Platt had entered into a separation agreement in 2011. Under the terms of the agreement Mr. Platt was to pay spousal maintenance of $700 per month. In February of 2015 this increased to $1000 per month when their daughter graduated college. Unfortunately Mr. Platt lost his job. At that point the Judge reduced his monthly spousal payments to $400 per month. Eventually, Mr. Platt’s unemployment benefits expired. At that time Mr. Platt moved to have his spousal maintenance obligations suspended due to “extreme hardship” pursuant to New York State Domestic Relations Law section 236. His wife Christine Platt opposed the motion.

Justice Dolinger, in his decision, suspended the spousal maintenance payments. His decision stated the suspension was temporary. He wrote that the maintenance would resume “in an amount that the Court deems proper upon the husband obtaining employment or receiving other benefits from another source including gifts from his parents.”

About The Author

Elliot S. Schlissel, Esq. is an attorney practicing matrimonial and family law in the metropolitan New York area for more than 34 years.matrimonial assistance through divorce

Relocating After a Divorce

divorce lawyerWhen a custodial parent seeks to relocate, he or she may run into more complications and difficulties than he or she anticipates. An order of custody and/or divorce judgment may contain clauses specifically preventing a custodial parent from relocating. Whether the custody order or the divorce judgment contains a clause of this nature, the custodial parent, who seeks to relocate, must bring a proceeding in the State of New York, either in the Supreme Court or in the Family Court. The proceeding will be for the purpose of obtaining a court order authorizing the relocation of the custodial parent.

Good Reasons For Relocating

The application brought by the custodial parent must contain a compelling reason for relocating with the child or children. Some of the reasons that have been alleged in petitions of this nature deal with employment in another locality, it is closer to family members for a support system and opportunities for the children to enhance their education.

The Impact On The Non-Custodial Parent

In most situations, the relocation of the children will have a negative impact on the non-custodial parent’s visitation rights. To compensate, the non-custodial parent is often offered additional parenting time. Additional parenting time can involve summer vacations, school vacations, school recesses and other periods of time when school isn’t in session. In some situations, the parent who seeks to relocate may have the obligation of paying the cost of transportation of the children back to visit with the non-custodial parent.

Courts in the State of New York are reluctant to grant relocation applications due to the negative impact it can have on the other parent’s visitation rights. To be successful in New York it is extremely important to show the relocation will be in the children’s best interest. To accomplish this goal it will be necessary to show how the children’s lives will be enhanced either economically or in another manner.

Present A Plan to the Court

If you seek to relocate it is important to present, in your court petition, a plan for visitation with the non-custodial parent. This plan must show the children will be able to maintain their relationship with the non-custodial parent. Since the party bringing the application will have the burden of proof, it is essential in the proceeding to be represented by an experienced family law attorney who has previously dealt with relocation cases before the local courts in your jurisdiction.maintenance and custody attorneys

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