Divorce: New York

Divorce: New York

Category Archives: Modification

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Contract Enforcement Available Despite Successful Downward Modification of Child Support

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Modification
A court’s reduction of a divorce judgment’s child support obligations, incorporated from a settlement agreement that survived the entry of that judgment, does not result in a modification of the agreement. The shortfall may still be collected through a separate action to enforce the contract. As Nassau County Supreme Court Justice Leonard D. Steinman noted … Continue Reading

14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding

Posted in Custody and Visitation, Modification
Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers … Continue Reading

Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support

Posted in Child Support (C.S.S.A.), Modification
The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children. Such was the holding of the Appellate … Continue Reading

Father Directed to Pay Orthodontist Directly; and Mother Entitled to Upward Modification

Posted in Child Support (C.S.S.A.), Modification
In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted. Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the … Continue Reading

Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Enforcement of Support and Orders, Maintenance, Modification
Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order. In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ … Continue Reading

Divorce Stipulations That Change Court Standards Must Be Precise

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Maintenance, Modification
Under a 2004 stipulation of settlement that was incorporated, but survived the entry of the judgment of divorce that ended the parties seven-year marriage, the ex-husband/father was to pay $250,000.00 in annual maintenance and $140,000.00 in annual child support emancipated. The stipulation further provided that the father would be able to apply for a reduction … Continue Reading

Substantial Legal and Procedural Rights Are Lost in Divorce Arbitration Before Jewish Beth Din Panel

Posted in Alternative Dispute Resolution (ADR), Modification, Temporary (Pendente Lite) Relief
Resolving the rights and obligations of a couple incident to their divorce often involves the delicate balancing of property rights, spousal and child support, and custody and parenting issues. Attempting an orderly resolution in different forums simultaneously may be impossible. The July 26, 2012 decision of Nassau County Supreme Court Justice Daniel Palmieri in Loike … Continue Reading

Support Modification Agreements: Get’em in Writing; Get’em into Court

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Jurisdiction, Modification, Statutes
Particularly when it comes to agreements fixing child support obligations, ”shaking on it” is simply not enough. Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements. Nothing suggests that modifications … Continue Reading

Unemployed Father May Have To Relocate Rather Than Having His Child Support Obligation Reduced

Posted in Child Support (C.S.S.A.), Modification
When a judge works this hard to provide a searching analysis of a difficult question, we should sit up and take notice. Should an unemployed father be required to prove why he should not have to relocate to seek/obtain employment in his field as a condition to him receiving a downward modification of his child … Continue Reading

Severability: When Only One Provision of a Divorce Settlement Agreement Is Invalid

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Modification, Settlement
What happens when only one provision of an agreement is invalid because it violates some statute or public policy?  The answer may depend on who the court wants to benefit, instead of consistently-applied rules of contract law. Take, for example the April 5, 2011 decision of the Second Department in Duggan v. Duggan.  In that … Continue Reading

Drafting Alert! Surviving Divorce Settlement Agreement May Not Preclude Automatic Child Support Modifications

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Modification
Effective October 14, 2010, amendments to D.R.L. §236B(9) and F.C.A. §451 go into effect (Laws 2010, chap. 182; Bill #A8952).  They require that language be included in divorce settlement agreements to specifically opt out of a newly-created entitlement to a judicial modification of a child support order. Without such language, even a child support order based … Continue Reading