Tuesday, May 28, 2013

Is the parents required to use w-2's joint or seperate incomes if they are remarried to justify increase and derease in child s

Q:  child support modification

A:  David's Answer:  If I understand your question correctly, it is only the income of the parent of the subject child which counts for the child support calculation. As such, if the parent re-marries, his/her spouse's income usually does not get included in the calculation. That said, you should schedule a follow-up consultation with a Child Support lawyer in your area for a full assessment of the situation.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

If you accrued one year of arrears and just started paying, Is it easy to get modification or can violation still be enforced

Q:  My ex only got a part time job to stay out of jail.

A:  David's Answer:  First, you can still enforce the order. Whether he'll be found guilty is a question intertwined with whether he'll get the modification. The answer will be whether he can prove he made a "diligent search" for work, which usually entails submission of an extensive job search diary to the Court. In my humble opinion, most such violators fail in that regard. In any event, you're best advised to schedule a consult with a Child Support lawyer in your area.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Tuesday, May 21, 2013

Parental obligations?

Q: do i have to pay child support if we agreed to have and abortion or put the baby up for adoption and she reneged?

A: Assuming the baby was born & you're the father, the answer is yes. Such "out-of-court" agreements are not binding. If she's suing you for support now, or threatening to, you're best advised to schedule a consultation with a White Plains Child Support attorney. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Can a Matrimonial judge overrule Federal Law?

Q: In the Decision After Trial, the judge granted my ex the right to deduct our youngest child on his taxes. I never signed the IRS form, and was not required to in the Decision. Now its years later, and I provide the majority of support, have sole custody and there is no visitation. He is suing me for deducting the youngest. The IRS office says I am in compliance. Does the Decision supersede Federal Law? Please respond - I am back in court tomorrow.

A: David's Answer: It's not so much that the Judge is "overruling" IRS regulations. It's that the IRS regulations - which say the custodial parent is generally entitled to the deduction for the children - merely sets up a general rule. State Judges are then allowed to make decisions/orders which make an exception to that general rule. If there was an order in place and you violated, then you should do 1 of 2 things or both: (1) file an amended return, and/or (2) file a modification petition requesting a re-consideration of the deductions (and/or an upward modification if more than 3 years has passed since the Judge's prior decision). For a full assessment, I suggest setting up a consultation with a Westchester Child Support lawyer. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Magistrate verbally agreed on my ex paying 66% of the extras, not stipulated in court papers, ex is not paying, what should I ?

Q:  Ex is paying child support but not the 66% agreed verbally, I need to file a change of circumstance, how to I prove the verbal agreement aside from trying to obtain a transcript,
(the case was taped) not typed. I need him to pay the 66% percent of extra curricular activities as I am a single disabled mom, what steps should I take? 

A:  David's Answer:  If you believe something was stated on the record by the Magistrate, but then not put in the final order, then there is no way to correct the prior order without ordering the transcript. You should thus order the transcript and file a motion to re-settle the prior order (NOT a petition for modification, which can only grant you relief retroactive to your filing date, as opposed to relief retroactive to the date of the order). In any event, I suggest you schedule a consultation with a Westchester Child Support lawyer.   -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Child support after Ex husband retires

Q: Ex husband said he is retiring from the military. will they still continue to take the child support from his monthly pay check, like they have been doing

A: David's Answer: If your support is collected by Support Collection Unit, you may wish to notify them. Your ex will likely no longer receive a paycheck from the military, but instead begin receiving his military pension. This requires a different enforcement devise to be utilized to collect the support, which they should be able to process. Nevertheless, they may need to information from his pension in order to process the paperwork. You should schedule a follow-up consultation with a Westchester Child Support attorney for a full assessment. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Saturday, May 18, 2013

Can I be forced to change my child's last name?

Q:  I'm in court with my child's father. My child is 5 months old. I gave my child my last name and now the child dad want the child's last name to be his. I never married my child's dad could I be forced by the courts to do that?

A: David's Answer:   you're in court on a paternity petition & the father is able to legally establish himself as the child's father, then yes, he has a right to request that the child's last name be changed. Usually in such an instance the court will compromise and have the child's name hyphenated. In any event, you should schedule a follow-up consultation with a Westchester Child Support lawyer for a full assessment.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Parental obligations?

Q: do i have to pay child support if we agreed to have and abortion or put the baby up for adoption and she reneged?

A: David's Answer: Assuming the baby was born & you're the father, the answer is yes. Such "out-of-court" agreements are not binding. If she's suing you for support now, or threatening to, you're best advised to schedule a consultation with a White Plains Child Support attorney. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Should two bonuses paid in a year due to administrative changes in my company's bonus program be used in my child support calc

Q:  I normally get one bonus in Jan. In 2012 I got a bonus in Jan. In Oct, my company decided to move the next year's bonus payment from Jan 2013 to Dec 2012 to align performance bonus with the year earned. This pushed income I would have normally received in 2013 into 2012. Thus over-inflating my 2012 income. Now my ex wife is claiming that my income has increased and wants an adjustment to child support claiming my income is my salary and the two bonuses. My argument is that 2012 was not a normal year due unforeseeable timing change in bonus payout. How do I approach this situation to keep the Dec bonus from being used in the child support calc? I live in Westchester County NY.

A:  David's Answer:  I'd suggest to get a letter from your employer that states what they did. I'd also suggest to bring in your current paystub so the magistrate can see for pro-rated income for 2013. Finally, I'd suggest to bring in copies of previous years tax returns so the Magistrate can see your historical earnings. In any event, I'd also highly suggest that you schedule a consultation with a Westchester Child Support attorney for a full assessment of the case. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Saturday, May 11, 2013

Motion to modify child support denied - NY

Q:  I just had a family court DENY a motion to have my child support raised. The decision was DENIED, NOT denied without prejudice. My question - How long before my ex starts harassing me again with more petitions. She never stops... ive been in and out of court almost non-stop since 2011 and i want the brakes put on this lunatic so i dont have to miss more work...there has to be SOME limit since she was just denied.... but i have no idea what that limit is...

A:  David's Answer:  I agree with the other poser - if she files again for the same exact relief, you should file a cross-motion for sanctions both in the form of a fine as well as in the form of attorney's fees. You can also ask the Judge to direct that she only file future petitions in the form of an order to show cause, which then would require the Judge's review of the petition first before directing it be served on you.   -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

I have 2 kids. I pay child support 500 bi weekly. My gross pay is 2181.74. Can I get it lowered if I pay for Master school.

Q:  Child Support lowered since I am paying for my masters School.

A:  David's Answer:  Preliminarily, I would add that (per the other posting) NYC tax does not count as a deduction in Mount Vernon (& assuming you're talking about a Westchester order), as you're most likely not incurring that tax. That said, merely attending school is not a basis to lower the order. I would, nevertheless, highly suggest that you cut a deal with the mother. It's in her (& the child's) interest to have you finish & presumably get a much better job as you could then afford to pay even more.   -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

If I'm 16 and i have a baby , and the father is my age can i still get child support if he doesn't want to be the day ?

Q:  I'm not having a baby , but this refers to my friend and i wanted to know

A:  David's Answer:  Yes - she can file a petition for paternity & support with the Family Court. I agree with the other poster - it's unlikely she'll get anything more than $25 or $50 per month, but this can be revised after he graduates. In any event should you or your friend have additional follow-up questions, I encourage you to schedule a consultation with a Dutchess/Westchester Co. Child Support lawyer.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Want to know if I have good case to win a motion for upward modification of child support.

Q:  I have a divorce decree entered by the court approving a settlement agreement . In the settlement amt , it states that I agreed to a below the minimum child support amount due to the liberal visitation agreed upon with my son's father . 3 years later , he has never exercised his right to see his son two week nights a week and further , currently he only sees him for one overnight twice a month . . . not even for the 2 night weekends as originally agreed upon too . I would like to move the court for an upward modification of child support to the minimum allowable in NY . If this isn't a strong case , I would like to seek to be allowed to claim my son my my taxes each year instead of every other year as it stands now . Are these strong grounds for an upward mod ?

A:  David's Answer:  How many years ago was the agreement done? For long has he only exercised 1 weekend per month? Does the agreement have a default notification provision - and if so, did you provide him with written notice of his default? Answers to these & other questions will help determine your chances.   -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Need pro - bono services for immediate spousal and child support

Q:  Stay at home mom of one toddler with a husband who has not financially supported us since a month ago . Been using my own CC and reached my max for the month . In need of immediate assistance for basic necessities . Husband isn't willing to help or resolve this issue and has been MIA . Cannot afford an attorney . Where to find a pro - bono lawyer ? Search engines are of no help .

A:  David's Answer:  There are many websites which can connect you with a lawyer, not only Avvo, but also Legalmatch.com, Lawyers.com or Findlaw.com. You should also check with the Westchester Bar Association Lawyer Referral Service (914-761-3707). Shop around - some lawyers will indeed accept the case with no fee or a small fee if they anticipate your Husband will pay all or most of their fees.  -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Child support Payments

Q:  I cannot find the receipt of an extra curricular activity. My support papers state that I must present a bill/receipt to my ex to receive payment. Can a check showing payment be enough or do I need to still present the bill/receipt?

A: David's Answer:  Why not call the activity & see if they can fax or e-mail a copy to you? The cancelled check is better than nothing, but usually the Magistrate's want to see both the bill plus proof of payment. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

How is support determined from a 1099

Q:  my husband earns a 1099 and makes over $ 150 thousand , but has so many " deductions " that he ends up paying taxes on only $ 20 - $ 25k . From which number is child support calculated - the $ 150 thousand or the $ 25k ?

A:  David's Answer:  It is arguable that neither will ultimately determine child support. Merely because he claims such a high amount of deductions doesn't mean they're all legitimate business expenses. Among other things, he'll need to produce all the receipts & invoices proving that the expenses are indeed business expenses.  -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

My x boyfriend is taking me to court for a paternity proceeding for my newborn son. What is the procedure from beg. To end

Q:  I had a baby 7 weeks ago and my xboyfriend is taking me to court for paternity proceeding. He has not been involved with me since aug. baby born in dec. I'm not sure if he is the dad. I have no one on birth cert. I would Like to no what to expect now I go for DNA test right there? If he is the dad does he automatically get visitation or does he have to petition again? I left him cux he abused me I don't trust him with the baby for safety reasons. He also has done drugs. Also i am living with my parents who are supporting me and we are all moving in about a year. I can't afford it on my own will I have a prob moving away with them. We are moving 175 miles upstate in same state. Help!

A:  David's Answer:  On the first court date, either of you have the right to request a DNA test. The court will then adjourn the case & await the results of the test. If the test comes back positive, it will automatically trigger a child support hearing (assuming you want him to pay). As for visitation, he would indeed need to file his own petition.  -- David Bliven, Westchester Child Custody/Support lawyer (www.blivenlaw.net)

How do I go about filing a contempt motion against my father?

Q:  My parents were divorced 14 years ago. One of the conditions of the divorce decree was that my father was to pay 50% of my college tuition. I've been asking for months, trying to keep things out of the courts, but to no avail. The divorce took place in another county- do I need to file something to have the case moved to where I currently live? What type of documentation do I need for a hearing about this?

A:  David's Answer:  I would agree that the first person who should be filing the contempt motion would be your mother, as she was a formal party to the divorce case along with the agreement. However, if there is a valid reason why your mother cannot or will not file, I believe you can self-petition. And while children self-petitioning on child support matters is quire rare, I disagree with the other poster's implication that it is impossible.   -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Am I responsible for camp fees that are billed to the grandmother and not my ex?

Q:  I am responsible for half of my daughter's camp fees but the bill presented by my ex is not addressed to her but her mother. Am I responsible for the bill even though it is not addressed to my ex? Couldn't this be seen as a bill for her mother?

A: David's Answer:  One needs to analyze the agreement - assuming this was done pursuant to an agreement versus mere order. In addition to you, does it specifically require the mother to pay her portion? That said, I doubt it will actually have consequence as to who's paying the bill on her end.  -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

If the IRS is garnishing my paycheck, am I eligible for a child support decrease?

Q: I've been paying child support for 13 years, my ex requested an increase in court, I'm already giving her 852$ per month, and now because I owe 58,000$ in back taxes, the IRS is garnishing my paycheck for 800$ per month, now that's over 1600$ per month, between child support and IRS garneshment on a 95,000$ per year salary and I still have my regular bills to pay. Now I cannot survive financially, so am I eligible for a decrese in child support payments due to this hardship? My family court is in Brooklyn NY.

A: David's Answer: You generally would not be eligible for a decrease, as usually support is based on a percentage of your income. Nevertheless, you may be able to defeat the upward modification application by arguing that you have an "extraordinary expense." To reserve your right to proceed on a downward modification application, you'll need to file & serve your own counter-petition. -- David Bliven, Westchester Child Support lawyer. (www.blivenlaw.net)