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Frequently Asked Questions

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Divorce Do's and Dont's

Find out what you should and shouldn't do during the divorce process.

How is child support calculated?

The Child Support Standards Act (CSSA) provides that children are entitled to support until 21 or emancipation. Events that may trigger Emancipation are:

  • Marriage (even though such a marriage may be void or voidable and despite annulment)
  • Permanent residence away from the residence of the custodial parent.

A residence at a boarding school, camp, or college is generally not an Emancipating event. However, death, or entry on a full-time basis into the armed forces of the United States, excluding non-active duty in any college ROTC or similar type military program may constitute emancipation. The emancipation event shall be deemed terminated upon discharge from such forces. Engaging in full-time employment upon and after the attaining by the Child of 18 years of age is an Emancipating event, except and provided that engaging by the Child in part-time employment (less than 25 hours per week) shall not be an Emancipating Event, and engaging by the Child in full-time employment during vacation and summer periods shall not be deemed an Emancipating event.

Child Support is determined by the combined parental income of the parents up to $80,000 by the appropriate child support percentage; beginning January 2010 the same calculation will apply up to 130,0000. (17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children) Where the parental income exceeds $130,000, the court has the discretion to make an award based on this additional income by considering factors such as the financial resources of the parents; the standard of living that the children would have enjoyed had the marriage not been dissolved; the special needs of the children; the educational needs of the children; the non-monetary contributions that the parents make towards their children; whether there is a significant disparity of income between the parents.

For illustrative purposes, presume parents have one child. The non-custodial parent has an annual income of $150,000.00 and the custodial parent has an annual income of $50,000.00. The non-custodial parent’s pro-rata share of his or her support obligation for childcare, health, and in some circumstances educational expenses would be 75%. Although there are statutory deductions that need to be subtracted from gross income for child support calculation purposes, an easy way to determine this is to multiply the non-custodial parent’s gross income by 17%, which in this case would be $25,500.00 per year or $2,125.00 per month. That is the basic child support calculation payable by a non-custodial parent for basic living expenses such as food, shelter and clothing. Of course, depending on the statutory deductions, that number may decrease. The court also has discretion to order the non-custodial parent to pay more or less based upon specific circumstances relating to the parties and the children. It is important to note that if the non-custodial parent is paying spousal support (maintenance) the court will subtract that specific amount from his or her income when calculating child support in order to avoid double-dipping or creating an unjust windfall to the custodial parent. However, there are many “add-ons” (i.e., medical insurance, child care costs, educational costs, etc.) which are generally required to be paid in a pro rata proportion by the non-custodial parent, in addition to the basic child support obligation.

Will marital fault have an impact on my divorce?

Marital fault is usually not considered to have a financial impact on your case, unless such marital conduct rises to the level of “egregious” conduct. However, depending upon your degree of marital fault it may very well impact on your ability to obtain physical and or legal custody of your children. If a parent disparages the other in the presence of their children and causes emotional and or physical harm to their children the courts may deem that parent unfit to be the custodial parent. Furthermore, if that parent is unable to amicably communicate with the other regarding issues of the child’s health, educational and religious instruction they may relinquish his or her rights to joint legal decision-making.

What can I do to protect myself from my spouse who has controlled all of the finances throughout our marriage? At the initial consultation your attorney should review your financial picture (assets and liabilities) by you gathering and bringing to their office any and all financial documents (bank statements, tax returns, investment statements, life insurance policies, credit card statements) for photocopying. By doing this you may be eliminating the expense of engaging in protracted financial discovery. In addition this may prevent the other spouse from attempting to conceal, dissipate and transfer assets which may be subject to equitable distribution.

If you believe that your spouse will loot, hide, dissipate or secrete assets you may be advised to request from your financial institutions to freeze specific accounts or require both spouses to sign for any withdrawals. If you have a joint credit card account with your spouse you may want to terminate the card or significantly reduce the lines of credit available.

What can I do if I am unable to pay a firm’s divorce retainer? If there is a significant disparity in income and assets between you and your spouse, your attorney may make a motion to the court to direct your spouse to pay for your counsel fees. In addition, your attorney may make a motion for interim “pendente lite” relief requesting that your spouse pay temporary spousal and or child support including but not limited to contribution and payment towards the household expenses and carrying charges pending final determination at trial as to a permanent award.

Now that I commenced a divorce proceeding, can I obtain a court order to compel my spouse to leave our marital residence pending the action? It all depends on the circumstances. A spouse may voluntarily agree to vacate the marital residence but he or she should always consult with an attorney before doing so. To vacate the marital residence without a written agreement may have profound impact on the grounds for divorce, custody and visitation. If a spouse can obtain a “stay away” order of protection from the courts by proving domestic violence at the hand of the other spouse, then the abusive spouse will be required to vacate the marital premises.

How can I prevent the custodial spouse from relocating our children to a different state or restrict the distance from which my children reside from me? If you settle your case by Agreement, your attorney should have negotiated a radius clause to restrict the distance from which the custodial parent may reside with your children from that of the non-custodial parents residence. Short of this agreement, the custodial parent must petition the court before he or she can relocate your children out of state. The court in determining whether to permit the custodial parent to relocate the parties’ children out of state must look at whether it is in the “child’s best interest.” In addition, the court will weigh the impact of the move on the child which will focus on the decreased parenting time with the non-custodial parent, the effect of the child’s educational needs, social and family relationships. If the court determines that the custodial parent is relocating for the exclusive purpose of frustrating the non-custodial parents parental access schedule with his or her children, then the relocation would be denied.

Furthermore, a custodial parent who wants to relocate his or her children out of state because of remarriage or better employment opportunities, must not only show that it is in the custodial parents best interests and well-being, but that of their children.

Contact Long Island divorce lawyer Jay D. Raxenberg today! Toll Free 1(888)543-4867.

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