Spousal Maintenance Changes in 2019. No longer tax deductible to the Payor Spouse nor tax includible to the recipient. As part of our Spousal Maintenance calculation, we tax impact the Spousal Maintenance amount. This can either be done by the parties’ accountant or a forensic accountant.

The Duration of Spousal Maintenance follows an advisory schedule:

Length of Marriage                                                                Duration of Maintenance                  Up to and including 15 years                                            15% to 30% of length of marriage      More than 15 years up to and including 20 years        30% to 40% of length of marriage      More than 20 years                                                             35% to 50% of length of marriage

The Courts do make changes to the advisory schedule where the resulting duration is unjust and inappropriate.

Sometimes there is a fine line between Sole Custody and Joint Custody.  The concept of “either or” does not have to exist and the parties are usually free to adopt Custody language that they can agree on. Below are five (5) possibilities. 

1. JOINT CUSTODY WHERE THE COURT HAS FINAL DECISION MAKING AUTHORITY: The parties mutually agree that the parties shall have joint legal custody / shared custody of the infant issue of the marriage with Mother having residential custody. All major decisions involving the Child, excluding emergency medical treatment, shall be discussed by the parties.   In the event that the parties are unable to reach agreement then they shall petition a Court of Competent jurisdiction.  The Child shall reside with the Mother, except for visitation/parenting time periods designated to the Father in accordance with the provisions of this Article and / or as agreed to by the parties.  The Mother agrees to make all reasonable efforts to assist the Father to accomplish visitation taking into consideration the Father’s work schedule and the children’s school schedule and activities. All visitation/parenting time shall take place away from the residence of Mother.

2. JOINT CUSTODY WHERE MOTHER HAS FINAL DECISION MAKING AUTHORITY: The parties mutually agree that the parties shall have joint legal custody of the infant issue of the marriage with Mother having residential custody. All major decisions involving the Child excluding emergency medical treatment, shall be discussed and the Mother shall have final decision making authority and such final decisions shall be reasonable.   The Child shall reside with the Wife, except for visitation periods designated to the Husband in accordance with the provisions of this Article and / or as agreed to by the parties.  The Mother agrees to make all reasonable efforts to assist the Father to accomplish visitation taking into consideration the Father’s work schedule and the children’s school schedule and activities. All visitation shall take place away from the residence of Mother.

3. JOINT CUSTODY WHERE PEDIATRICIAN AND SCHOOL HAVE FINAL DECISION MAKING AUTHORITY OVER MEDICAL AND EDUCATIONAL DECISIONS: The parties mutually agree that the parties shall have joint legal custody of the infant issue of the marriage with Mother having residential custody. All major decisions involving the Child excluding emergency medical treatment, shall be discussed and if the parties are unable to agree then the child’s Pediatrician shall have final decision making authority in all medical matters and the school officials where the child is attending shall have final decision making in all matters involving education.   The Child shall reside with the Mother, except for visitation/parenting time periods designated to the Father in accordance with the provisions of this Article and / or as agreed to by the parties.  The Mother agrees to make all reasonable efforts to assist the Father to accomplish visitation taking into consideration the Father’s work schedule and the children’s school schedule and activities. All visitation shall take place away from the residence of Mother.

4. SOLE CUSTODY TO MOTHER EXCEPT THAT THE PARTIES HAVE JOINT DECISION MAKING AUTHORITY ON MATTERS OF HEALTH EDUCATION & RELIGION : The parties mutually agree that the Mother shall have sole legal and residential  custody of the infant issue of the marriage.  The Mother shall have residential custody of the infant issue of the marriage.  The Mother shall have final decision making authority for all decisions involving the Child except that the parties shall have joint decision making authority on major decisions concerning the children’s Health, except in emergencies, Education and Religion.

5. SOLE CUSTODY TO MOTHER The parties mutually agree that the Mother shall have sole legal and residential custody and con­trol of the Child of the marriage. The Child shall reside with the Mother  except for visitation periods designated to the Father

Divorce usually ends with an agreement between the parties (husband and wife). The agreement is often referred to as a stipulation of settlement. Where there are children involved the agreement will resolve issues of child custody, child support and parenting time (visitation).
Parenting time very often becomes a problem, with one parent refusing to allow agreed to visitation with the other parent especially during the holidays and school breaks.
When we are asked to get involved, we tell our client to follow the agreement and consider the best interest of the children. Children need both parents. Parents must realize that their parenting time battles are devastating to the children.
When we represent the parent seeking parenting time, we will immediately attempt to contact the other attorney, if the refusing parent (the parent denying parenting time) is represented. If the refusing parent is not represented then we will attempt to contact that party directly. Time is of the essence. Our contact method of choice is by phone. Our goal is and always has been to resolve the conflict quickly. Court intervention is a last resort and should only occur when all else fails.
When we need the assistance of the Court we us a legal device called a Writ of Habeas Corpus. The Writ compels the parties to immediately appear before a judge. It requires the signature of a judge and service on the refusing parent. If we know of the existence of a problem in the morning, we may be able to have the parties appear before a judge that afternoon. If you know in advance that parenting time is going to be a problem, contact us at the time that you become aware of the problem. We need as much advance notice as possible, especially where the children reside in another state or the parties are separated by long distances.
Very often we will hear the refusing parent state “my children are refusing to go”; to which we answer: “what do you do when your children refuse to go to school?”
I realize that there are exceptions to everything and not everything is black or white. Please keep in mind that childhood is brief and passes quickly. It is the time that the foundation of the child’s personality is formed. I ask the refusing parent to do the right thing or suffer the consequences.

Call us at 631-777-3900

We are located in Melville Long Island

PARENTAL ALIENATION: Over the past year I have been asked to comment about children aligning with one parent and rejecting the other to the point that the rejected parent is totally excluded and isolated from from the children. I have observed this fractured relationship in both a “functioning marriage” and during and following a divorce. The optimal time to raise this issue is as soon as the behavior is observed by way of family counseling and therapy. Unfortunately this requires the cooperation of both parents, which is usually not forthcoming.
1. I urge divorcing parents, who are not legally removed from their own homes, to remain there until issues of child custody and visitation are established. This can be accomplished in either Family Court or in (New York State), Supreme Court.
2. If the parties are divorcing in Supreme Court or litigating the issue of visitation in Family Court, this issue must be immediately brought to the attention of the Judge. The issue can be raised in conference with the Judge or by Motion / Order to Show Cause. The Judge has the authority to appoint a Lawyer for the children (often referred to as a Law Guardian). The Judge may also choose to interview the children in camera (chambers). The procedure of interviewing the children in chambers is frequently referred to as a Lincoln Hearing, where the children are brought into chambers with their attorney to be questioned by the Judge. Neither parent nor their respective attorneys are present during the hearing in camera.
3. Even though the Judge is the ultimate decider (trier) of the facts, he or she will need the assistance of professionals (forensics) to establish a visitation schedule and determine custody.
4. Somehow the legal system must decide if the fracturing of the relationship between parent and child is as a result of Parental Alienation or Realistic Estrangement.
5. It is the job of the attorney to educate and convince the Court of the correct position. Our hope is that the skill and knowledge of the attorney can assist the Judge to overcome any personal bias that may influence the outcome.
6. As an active member of the Matrimonial Bar, I am comited to educating members of the Bench.
7. In some instances therapeutic visitation when conducted by a skilled therapist can help. Supervised visitation is a last resort, to be used only when there is no alternative
8. The most important consideration is the Best Interest of the Child. Wherever possible, keep the kids out of the fight.

I am available to answer a limited number of questions and can be reached either through my website or by email: bruce@guttman.com.

Bruce H. Guttman Esq
The Guttman Law Group LLP
555 Broadhollow Road, Melville NY 11747
631-777-3900

THE IMPORTANCE OF FINANCIAL INDEPENDENCE DURING THE MARRIAGE. is critical to the survival of the parties during a divorce. New York Domestic Relations Law provides for pendente lite (pending litigation) maintenance for the non-monied spouse and child support for the Residential Parent (with whom the children are residing). The financial relief ordered by the Court is not immediate, is not guaranteed to be sufficient as the amount is determined by the Court, and is subject to the resistance or refusal of the monied spouse especially if he or she is self employed. The financially damaging effects of divorce can be minimized if both parties are working. I caution stay at home spouses to get back into the work force or to go back to school

Divorce is a dissolution of the marital partnership. The end result is that the parties will no longer live together. An unnecessary and tragic consequence is the loss of a parent, and that parent’s family to the children “left behind”. The loss is by legal death and usually results from the Residential Parent’s desire to win at all costs. The loser is the child who grows up without the noncustodial parent. The loser is the child (through a process of parental alienation) who wants nothing to do with the noncustodial parent. The law recognizes the need for the primary custodial parent to foster a relationship with the noncustodial parent and the Court has the authority to reverse custody, something that rarely occurs . A good fight is costly as justice is not cheap. The fight can include therapeutic visitation, forensic evaluation and and supervised visitation; all very costly. As a lawyer whose practice is limited to matrimonial and family law and as an active member of the Matrimonial Bar I welcome suggestions that I will try to pass on to my colleges who include judges and legislators. I welcome your comments. My goal is, wherever possible, for children of divorced parents to have two actively involved parents. We are trying to help. As a caveat, there are exceptions.

CHILD CUSTODY PARENTAL ACCESS to the Children and THE NEED TO ACT QUICKLY

Here are some basic tips:

1) the longer the non-custodial parent goes without seeing the parties children, the more difficult it becomes to reestablish the relationship between parent and child. The lawyer representing the custodial parent needs to be made aware of the lack of communication between parent and child and may be willing to help.
If the lawyer refuses to cooperate, some judges will permit a telephone conference call between the Court and the opposing attorneys. An Order to Show Cause to remedy visitation issues is Not a quick fix and is costly. The result cannot be guaranteed. We believe in a practical approach of attempting to call the Court with our adversary on the line. It is a very effective method of conferencing the case. The telephone call to Chambers sometimes proves to be a quick fix and can avoid costly motion practice;

There is a requirement that Automatic Orders be attached to every summons commencing a Divorce Action in New York State.  We have included a copy of those Orders below.  The Orders are designed to prevent parties to a divorce action from secreting or frivolously spending assets after the commencement of the action. the exception is the “usual course of business, for customary and usual household expense or for reasonable attorneys fees.

The Automatic Orders are effective but do not replace the need for a restraining order.  The restraining order freezes the assets and prevents use of the asset.  Significant assets need to be protected by a Temporary Restraining Order, ordered and signed by a Judge.

NOTICE OF ENTRY OF AUTOMATIC ORDERS (D.R.L. 236) Rev. 1/13

FAILURE TO COMPLY WITH THESE ORDERS MAY BE DEEMED

A CONTEMPT OF COURT 

PURSUANT TO Uniform Rules of the Trial Courts, and DOMESTIC RELATIONS LAW

• 236, Part B, Section 2, both you and your spouse (the parties) are bound by the following AUTOMATIC ORDERS, which have been entered against you and your spouse in your divorce action pursuant to 22 NYCRR §202.16(a), and which shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties:

• ORDERED: Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

• ORDERED: Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder.

• ORDERED: Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.

• ORDERED: Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each; and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

• ORDERED: Neither party shall change the beneficiaries of any existing life insurance policies and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

IMPORTANT NOTE:  After service of the Summons with Notice or Summons and Complaint for divorce, if you or your spouse wishes to modify or dissolve the automatic orders, you must as the court for approval to do so, or enter into a written modification agreement with your spouse duly signed and acknowledged before a notary public.

Under New York Domestic Relations Law (DRL) Section DRL 240 1-b(b)(5)(v). the Court may impute (in essence add) income based on the parent’s former income or resources, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent’s obligation to pay child support. We can assist in Child Support Modification petitions.

Under New York Domestic Relations Law (DRL) Section DRL 240 1-b(b)(5)(v). the Court may impute (in essence add) income based on the parent’s former income or resources, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent’s obligation to pay child support. We can assist in Child Support Modification petitions.