The most common issues that arise in a divorce proceeding are financial ones and how to determine awards of child support and spousal maintenance. Income is relevant to determining both of these awards. “In determining a party’s maintenance or child support obligation, a court need not rely upon the party’s own account of his or her finances, but may impute …
New York Family Law: Types of Child Custody
Determinations of custody are based on the “best interest of the child.” See DRL § 70; DRL § 240; see Eschbach v. Eschbach, 56 N.Y.2d 167 (N.Y. 1982). Best interest of the child factors are not contained in any statute, but are established through case law. These factors include: (1) The parent who has been the primary caretaker; (2) The …
New York Family Law: Relocation and Tropea Factors
Under New York law, a parent can relocate outside of New York only with a court order or agreement by the other parent, but it must be in the best interest of the child and cannot inhibit the other parent from having parenting time, assuming he or she has visitation rights. Tropea v. Tropea, 87 N.Y.2d 727 (1996) is the …
New York Family Law: The UCCJEA and Home State Jurisdiction
The Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”) is adopted in all states in the U.S. and concerns jurisdiction of child custody matters. The UCCJEA provides that States must enforce custody and visitation orders from other courts, including foreign country courts. The UCCJEA also clarifies who has jurisdiction over custody cases. Under the UCCJEA, there are four bases …
NY Family Law: Prenuptial Agreements, Bad Choices and Unconscionably
If you are making a bad decision, does that automatically mean that it was not a meaningful decision? The Court in Barocas v. Barocas, 94 A.D.3d 551 (1st Dept. 2012) sure thought not. Arguing that the prenuptial agreement is unconscionable is a way to have the agreement declared invalid. In Barocas, the parties disclosed all of their assets and the …
NY Family Law: Child Care Costs and Child Support
Parents have an obligation to support their children. In addition to basic child support, which is determined by a formula in accordance with the Child Support Standards Act, “add-ons” are other obligated expenses provided for in New York’s Domestic Relations Law, including unreimbursed health care (DRL 240 1-b(c)(5)(v)), child care (DRL 240 1-b(c)(4)) and educational expenses (DRL 240 1-b(c)(7)). Child …
New York Family Law: What is this Notice on my Child Support Order about Incarceration?
It is standard for all Family Court Child Support Orders to have a notice telling the Respondent that failure to abide by the Order can result in incarceration, among other penalties. This is the Notice: FAILURE TO OBEY THIS ORDER MAY RESULT IN INCARCERATION FOR CRIMINAL NON-SUPPORT OR CONTEMPT; SUSPENSION OF YOUR DRIVER’S LICESNE, STATE ISSUED PROFESSIONAL, TRADE, BUSINESS, AND …
New York Family Law: Relocation of Non-Custodial Parent
A client recently asked me: what happens when the non-custodial parent wishes to relocate outside of New York City greater area? She was the custodial parent in this case. Unlike with a custodial parent wishing to relocate, the law does not require the non-custodial parent to seek permission by the court, absent a separation agreement by the parties saying otherwise. …
Form I-864: Sponsoring Spouse’s Duty to Support
To file for a green card, the U.S. citizen must complete Form I-864, an Affidavit of Support, which is an immigration document requiring the U.S. citizen to maintain his or her foreign national spouse at or above 125% of the Federal Poverty Guidelines. Divorce does not nullify this promise of support. This is because the Affidavit of Support “serves the …
Meet Kymberly Robinson! New Associate Attorney on Board
Kymberly has been working for Rincker Law, PLLC as a contract attorney for several years and has now joined the team as an associate attorney. We are proud to have her part of the team. She is admitted to practice law in New York and Florida. She attended Union College in Schenectady, New York for her undergraduate studies, where she …
New York Divorce Law: Physical Abandonment
One of the “fault” grounds for divorce in New York is abandonment. There are two types of abandonment – physical abandonment and constructive abandonment (or sexual abandonment). In order to plead the ground of physical abandonment in a complaint for divorce, you must establish that 1) you have been abandoned by your spouse for one year or more, 2) the abandonment was …