New York Attorneys Dikman & Dikman’s Practice Areas
Family Court Proceedings
Dikman & Dikman represents clients in Family Court proceedings, including Paternity, Child Custody, Visitation, Parenting Time, Child Support, Spousal Support, Enforcement of Orders, Modification of Orders, and Domestic Violence/Order of Protection petitions.
We can explain all facets of your case and the rules that apply, ensure your rights and interests are addressed, and assist in achieving the best result possible. The standards for determination are typically the same as would be applied by a Supreme Court judge in a divorce action. Please follow the links above for information on each particular issue or contact us to learn more about how our attorneys can assist in resolving your New York family law issues.
A Paternity case seeks to determine who is the father of a child, as the identity of the mother is always known. A determination of paternity usually occurs in the Family Court. A paternity finding results in a formal court order known as an “Order of Filiation.” This order establishes both parental rights (to custody and visitation) and obligations (child support).
When two parents are married there is a “presumption of legitimacy”, meaning that a child born during the marriage is viewed as the child of both parents. If another man is alleged to be the natural father of a child born during the marriage, then a Court proceeding will be necessary, during which adequate proof will be required to overcome the presumption of legitimacy. Once that is completed, an Order of Filiation can name the unmarried man as father of the subject child.
When two parents are not married, there is no such presumption. Paternity must be established, but it isn’t always required to bring a court case. When a child is born in New York, the father may or may not be present at the hospital during and after the birth. When present in the hospital, the staff will offer the opportunity for the unmarried parents to sign a form known as an “Acknowledgment of Paternity.” This form is sufficient to establish paternity in the eyes of the law and leads to the issuance of a birth certificate with the father’s name. No paternity case will be required. Occasionally, a man believing he is the father of the child signs this form at the hospital and he comes to believe thereafter that he is not the father. In such an event, the father must immediately challenge and seek to set aside the Acknowledgment of Paternity in court. Failure to do so may lead to an inability to challenge the acknowledgment at a later date.
When no Acknowledgment of Paternity has been signed at the hospital, it will be necessary to bring a paternity case in court seeking an Order of Filiation before the court will order a father to pay child support or order a mother to provide visitation and parenting time with the child.
Filing a paternity petition is relatively easy and can be achieved without counsel with the assistance of the Family Court clerk. Once the petition is filed and the mother/Respondent is served with the papers, the parties will be expected in court. If there are no issues concerning paternity, the father may admit his paternity in court without DNA testing. The case can be immediately finalized if DNA testing is waived. If the alleged father wakes up years later and wants DNA testing, he may be precluded by the Court. If there is any question of paternity, or even if there seems to be no question, DNA testing is recommended just to be sure. The court will advise each party that there is mandatory DNA testing if either person requests it. Assuming DNA testing will take place, the court will issue an order that requires the parties to submit a DNA sample as well as the subject child. A report will be rendered which may exclude the man as the father or will determine that the likelihood of parentage is higher than 99%.
In a disputed paternity matter, the DNA testing results will usually form the basis for a resolution without a trial. In the face of a positive DNA test result, the father denying paternity is likely to finally admit paternity and move on. However, a right to a trial exists and a Family Court judge will determine paternity after a formal trial if need be.
Once a finding of paternity is made either based upon the admission of the father or an order after trial, there will be an immediate question raised as to child support and the court is mandated to make a support order at such time if the mother so requests.
Domestic Violence – Order of Protection
An Order of Protection is a lawful Order which can exclude a person from their home; prohibit them from communicating with the protected party; order them to stay away from protected people, which may include children; and can make various other Orders which seek to protect a person from continued domestic abuse and/or violence.
In Family Court, a request for an Order of Protection is made by filing a petition. The petition can be filed by an attorney on your behalf or can be prepared at the courthouse using the services of the court to assist in the preparation of the formal written petition. A judge will see the petitioner the same day of the filing to determine if a Temporary Order of Protection will be issued. The judge will make a short inquiry of the requesting party and review the petition. This initial determination will be made one-sided (ex-parte), without the appearance of the other party, known as the Respondent. If a Temporary Order of Protection is issued, the same will usually be forwarded to the police or sheriff for service on the Respondent. The court will add a Summons to the petition, which will notify both parties as to when the case will appear on the court calendar.
On the first date the Respondent appears, the Court will afford an opportunity to argue about the terms of any Temporary Order of Protection that had been issued in their absence, seeking to remove or change provisions or eliminate the order entirely. It is uncommon for the court to eliminate the Temporary Order of Protection entirely during the pendency of the matter.
The petition, otherwise known as a family offense proceeding under article 8 of the Family Court Act, will proceed until there is a resolution. A final resolution of the petition will usually take the form of a voluntary withdrawal of the case, a finding made upon the default of the Respondent, an Order of Protection without findings being made against the Respondent on consent, or after a trial at which the court will determine if one or more family offenses have been committed.
The petition can be withdrawn by the petitioner at any time, and may be subject to dismissal in the event that the petitioner does not appear timely when the case is on the court calendar. If the respondent fails to appear, a default may be entered with a corresponding final order of protection.
Many petitions are resolved with an “order without findings.” This means each party waives their right to a formal trial, known as a fact finding hearing, and agrees instead that a final order of protection may be issued against the respondent containing certain specific terms without any determination by the court that the respondent did anything wrong or violated any law. Such a resolution avoids the petitioner’s risk that they will be unable to convince the court after a formal hearing that a family offense was in fact committed, and avoids the risk to the respondent that the court will believe the petitioner and make a factual finding against them, which may not serve their long-term interests.
Our attorneys have represented clients in Family Court family offense proceedings on hundreds of occasions. We have prepared many petitions and defended them successfully.
In Criminal Court proceedings following an arrest by police, the person in custody is held until such time as they appear before a judge in the Criminal or District Court at their arraignment. Typically, the defendant will plead not guilty to the crimes and/or violations with which they are charged; the court will either release the defendant on their own recognizance or set bail conditions for their release. At an arraignment where the complainant and the defendant have a certain family relationship or have had prior intimate involvement, a temporary order of protection is usually issued on terms to be determined by the arraignment judge.
If you are charged with a crime or violation stemming from an alleged domestic violence incident, you will need representation in Criminal Court. It is essential that you hire a firm that is sensitive to Family Law issues, as rights relating to child custody, visitation, and economic matters can be affected by these proceedings.
New York City and Long Island divorce attorney David Dikman started his career as a criminal prosecutor and continues to represent individuals in Criminal Court who have been charged with domestic violence related crimes. He has successfully tried cases in which the Defendant has been acquitted and exonerated of all charges.
Integrated Domestic Violence (IDV) Courts – We represent clients in all matters pending in Integrated Domestic Violence Court. This is a Court which was created in each county to avoid situations where the same parties have matters pending in two or three separate courts, as has been the case in the past where the same couple had a divorce case in Supreme Court, a family offense Order of Protection proceeding in Family Court, and one of them had been arrested and charged with a crime in Criminal Court.
These different cases have very different rules of procedure and law in each court. Every county has an integrated courtroom, usually located within the Supreme Court complex, wherein eligible matters are transferred in order to have one judge handle all matters involving the same people and eliminate the multitude of court dates the parties would otherwise have in three courts. Generally, the clerk’s office looks for eligible cases based upon their protocol. Cases often start in their customary courts, and the trigger for a possible transfer to the integrated court is after the arrest. The difference in each type of proceeding is preserved in the integrated court, which typically conducts business each day calling the “family court matter,” the “criminal matter,” and the “matrimonial matter” separately each time the parties appear in Court.
Divorce and Separation
If your marriage is over, you can seek to establish all rights and obligations by reaching an agreement that provides for one party to proceed through the court uncontested to obtain a final Judgment of Divorce, or you might elect to sign a Separation Agreement instead. Either way, with divorce or legal separation, you can expect to address and resolve issues you may have relating to child custody, visitation, spousal support, child support, the equitable distribution of marital property, the declaration of separate property, the division of bank accounts, furnishings, the division of marital debts, tax-related issues, and the payment of counsel fees.
At this point in time in New York, a spouse who seeks a divorce is entitled to a divorce. While our law includes fault-based grounds which have existed for decades, New York now recognizes “no-fault” divorce and entitles a spouse to a final divorce if he or she swears under oath that, in their opinion, the marriage is irretrievably broken for a period of six months or more. A spouse who is against a no-fault divorce and does not consent can expect that the divorce will be granted in the end and no trial on this issue will be necessary. The divorce will not be granted until all of the economic and child custody related issues have been determined by the court after a trial or by the parties themselves in a final agreement.
There are limited benefits to a legal separation as opposed to a final divorce. One such benefit is health insurance for a dependent spouse, which can be maintained during the period of legal separation, regardless how long that lasts. In the event of a divorce, coverage as a dependent spouse ends subject to the availability of COBRA extension coverage for up to 36 months as a former spouse at significant cost.
A claim or complaint of a Violation of an Existing Order of Protection, if made to the police department, will result in a mandatory arrest of the alleged offender and criminal charges that can rise to the level of a felony even when the incident did not otherwise seem particularly serious in nature. The Court, police, and prosecutors take these Orders very seriously and, unfortunately, are sometimes duped by individuals who seek to use the Orders and proceedings as a sword rather than a shield. A violation petition can also be filed in Family Court, whether or not a police report was made. The level of proof required in each court is different and, on occasion, both cases stemming from the same conduct can continue simultaneously and even end with different results.
Divorce Mediation Assistance
Many couples benefit from seeking an agreement through mediation. Divorce mediation is designed for a couple to make decisions themselves after working with a neutral third party: the mediator. Mediation can help a couple learn to communicate again, if only for the sake of their children, and make their post divorce relationship better for all involved. Divorce mediation will seek to address and resolve all economic matters and issues affecting children.
A successful mediation results in a final agreement, which is often reached with less hard feelings and possibly saves a tidy sum on counsel fees and litigation. Sometimes agreements through mediation come easy; sometimes they take time and a lot of hard work. It is the mediator’s job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy, and assist the couple in their decision-making process.
A divorce mediator is neutral and doesn’t “work” for either person. That means the mediator cannot give advice to either party and is not there to protect your rights. Mediators strive to remain neutral no matter what the situation. Usually, they don’t even meet alone with either person, only together as a group. This is precisely why Dikman & Dikman assists clients before, during and/or after the formal mediation process. We are not “mediators” but can assure you don’t overlook important issues and claims you can weave into the mediation process, to ensure any agreement you may reach is as comprehensive as required, covers and protects you in all needed areas, and that you have a full knowledge of all matters which need your serious consideration.
Mediation is voluntary. You will not be forced to mediate by a court and cannot be forced to mediate by your spouse. While mediation is a useful tool for some couples bound for divorce, many couples are not good candidates for mediation. If you are a spouse who is concerned about hidden assets and money or largely in the dark about the economics of your marriage, assets, and debts, a mediator will generally not investigate or inform you on these matters and you may well be severely prejudiced in mediation.
If you are contemplating participating in mediation, we urge you to see us first to further educate yourself as to the process and to learn how an attorney can help you obtain the best results you can achieve through mediation.
In New York, child custody orders apply only when a child is under the age of 18. There are various terms that lawyers and courts use. Most people are familiar with the terms “sole custody” and “joint custody,” but may be unfamiliar with their true legal meaning. These terms have absolutely nothing to do with how much time parents will spend with their children as “visitation,” otherwise known as “parenting time.” The labels merely have to do with parental decision-making powers as well as access to information about children from third parties, such as schools and medical providers.
A parent with “sole custody” has the exclusive power to make all major decisions on behalf of a child and, unless otherwise specified in an agreement or court order, such a parent will have exclusive access to all records relating to the child from schools and medical providers.
Parents with “joint custody” are obliged to make major decisions affecting the health, education, and welfare of the subject children jointly. In theory, neither parent has superior rights in this regard and each parent will have equal access to all records relating to the child from schools and medical providers.
When parents settle these issues with a formal agreement or a decision is rendered by the court after trial, these strict custody labels are often revised. For instance, there may be joint custody of the children, but if the parents are unable to agree as to any major decision, then one parent’s determination will control. Sometimes final decision-making in the event of a disagreement may be within the power of one parent with regard to certain issues (e.g. medical, therapy), while providing the other parent with final decision-making power as to certain other issues (e.g. religion, education). On other occasions, the parties may opt to use a parent coordinator to mediate contentious issue in the hope that an accord can be reached. Similarly, there may be an award of sole custody to one parent which still entitles the non-custodial parent to access to all information concerning the children from schools and medical providers, or which may require the sole custodial parent to inform the other of major decisions which need be made and/or to consider their input prior to making a determination.
Contested custody issues are extremely expensive to the parties, and can take an awful toll on the children. During the course of proceedings, it is expected that an “Attorney for the Children” will be assigned and frequently this cost will be paid by the parents, divided based upon their respective incomes. If the issue cannot be resolved after a period of time, the court will likely consider whether to assign an independent forensic child custody expert to do an evaluation of the family and write a formal report, which may make recommendations to the court as to the custody and visitation determination the expert feels will promote the best interests of the children. This study is very expensive and usually financed by the parents, unless they are near indigent. Forensic child custody experts typically meet with each parent alone, with the children alone, with the children and each parent, and will often interview collateral sources such as grandparents, nannies, significant others of each parent, teachers, pediatricians, and therapists involved with parents or children. The expert may also employ certain psychological testing devices in addition to clinical interviews and observation in order to formulate their opinion.
It is best for all involved if a custody determination can be made without a formal trial. However, if the issues cannot be settled, a trial will ultimately take place. When a judge determines child custody after a trial, it is the court’s responsibility to determine what is in the “best interests” of the subject children.
There is no formula for a judge to determine a child’s best interests. There are many variables that are recognized as worthy of consideration by the court when relevant to a particular dispute. Such factors may include the age of the parents, physical health of the parents, mental and emotional stability, alcohol and/or drug abuse, domestic violence, moral character, financial condition, the preference of the subject children, religious considerations, the willingness of each parent to promote a relationship with the other parent, the nature and quality of the home environment, the effect of separation of siblings, the availability of each parent to the child based on their work and/or other obligations, abuse and neglect, stability, and which parent has been the primary caretaker of the children prior to and during the custody dispute. On a case-by-case basis, there may well be other variables that are worthy of consideration by the court to determine best interests.
At the end of a trial, the attorneys for the parents will each advocate for their own clients; the Attorney for the Children will take a position, usually consistent with the wishes of the children respecting custody; and, if a forensic child custody expert was utilized, the court will customarily have their opinion and recommendation before the trial. While judges usually decide child custody in a fashion generally consistent with the opinion of the forensic child custody expert, this is not always the case as the court may come to the opinion that the study by the expert was flawed in one or more ways. The judge will always have the last say and is free to disregard or overrule the recommendations of the expert as well as the Attorney for the Children.
Visitation & Parenting Time
Visitation and parenting time, like a child custody determination, is based on the “best interests of the child.” Usually an order for the non-custodial parent to have visitation will promote the child’s interests. However, if the conduct of a parent is so egregious that contact with their child would be inconsistent with this best interest, visitation can be denied entirely.
A complete denial of visitation and contact with a child is rare, but the truly undeserving parent with no redeeming parental qualities can expect this result.
In New York there is no presumption that parents shall spend equal time with their children; however, an equal time structure is warranted in some cases.
The preference of a child in connection with visitation is important, but the weight to be afforded such opinions is always tempered by their age, maturity, and any suspicion that their stated opinions are the result of manipulation by a parent. The preference of a child is usually not dispositive of the issue, but wields more control as the child gets closer to 18 years of age, after which visitation orders no longer apply.
When a parental relationship is substantially fractured, or there is adequate suspicion or proof that one parent may represent a danger to a child, a court may order supervised visitation or issue other restrictions. Supervision can be through a formal agency, family member, or other adult.
Similar to disputed issues of child custody, an Attorney for the Child will likely be appointed and the court may decide to use of a forensic child custody expert to study the family and render a report with recommendations as to what visitation structure, if any, would serve the best interests of the subject children.
If these issues are not settled, a trial will be held, and a judge will decide what parenting time structure would serve the best interests of the children.
If there has been no prior custody determination in the state of New York and a parent moves a child out of state with a child, the parent remaining in New York is free to file a case in court seeking the return of the child. A failure to commence a case in a New York court after six months of that move may well result in the law viewing the child’s “home state” as where they relocated and necessitating all child custody and visitation issues to be brought in the court of the other state, as opposed to in New York.
When a custody determination has been made in New York, the visitation and parenting time structure has been established. The parent with whom the children primarily reside may seek to relocate the primary residence of the children to a faraway place. Perhaps they wish to pursue a new relationship, a new job, are seeking to reside where the cost of living is lower, or have other reasons why they seek to relocate.
On some occasions, the final order of custody does not restrict relocation by the primary physical custodian of the children in any way. This does not necessarily mean that the primary custodian of the children is free to relocate anywhere they wish, especially when the same order provides regular and consistent visitation to the other parent, such as a midweek visit each week and/or alternate weekend visits as well. A move by the primary physical custodian of the children to a remote location would have the effect of violating the visitation order and making it unreasonable or impossible for the non-custodial parent to exercise their right to parenting time. For these reasons and others, a move can be challenged in court.
Settlement agreements and court orders often do contain restrictions against relocation beyond a certain distance, outside the state of New York, or other prohibitions. Regardless of the terms of any order or agreement, a parent may seek relocation outside the restricted area. The determination by a judge would be made based upon the “best interests” of the subject child as opposed to the preferences of either parent.
There are many issues a court would consider in determining whether a proposed move is in the best interests of the subject child. These factors include, but are not limited to each parent’s reasons for seeking or opposing the move; the quality of the relationships between the child and the custodial and non-custodial parents; the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent; the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move; and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.
Equitable Distribution of Assets
New York generally views marriage as an economic partnership which begins at the date of marriage and continues until or unless the parties are legally separated or one spouse begins a divorce case. The “marital property” that is acquired during this economic partnership is subject to equitable distribution.
Marital property can include, among other things, the value of a business or practice, retirement assets and accounts, real estate, stocks, bonds, bank accounts, mutual funds, cash surrender value of life insurance policies, vehicles, jewelry, collectibles, furniture, and furnishings, etc.
Equitable distribution does not necessarily mean equal and the law sets forth various factors for a court to consider in determining what is equitable. In long-term marriages, courts are somewhat predisposed to divide marital property equally unless there are compelling reasons to do otherwise.
While it surprises many people, the fact is our law prohibits consideration of marital fault as a basis for a disparate distribution of marital property, unless that fault was so egregious that it “shocks the conscience of the court.” Spouses who are somewhat abusive, controlling, or maintain intimate relationships outside of marriage are generally not penalized in asset distribution. Egregious misconduct is far worse and so far surpasses the marital fault encountered in the vast majority of relationships.
Marital property that is accrued during the course of the marriage includes all accounts and interests of both spouses regardless of whether the holding is in joint names or solely in the name of one of the spouses. For instance, a 401(k) retirement account in the name of one spouse, which was earned during the course of the marriage, is marital property.
The only exceptions regarding property or assets that were obtained during the course of the marriage, are those assets that are directly traceable to gifts from third parties, inheritances, or personal-injury awards received by one spouse. These assets are considered “Separate Property” and are not to be divided unless commingled with marital assets.
“Separate Property” also includes assets acquired prior to marriage by one spouse still existing at the time of divorce.
At the conclusion of a divorce case, each party should expect to retain their separate property and to divide the marital property. During the process, each asset will be classified as marital or separate property and treated accordingly. Unfortunately, based upon the way many people hold and manage assets during the course of their marriage the bright line between separate and marital property can be substantially blurred forming a variety a claims that may be made. There are many variables that might affect the likely equitable distribution result after trial and the determination of “marital” and “separate” property, which we can explore with you in consultation based upon your individual circumstances.
Child support in New York is usually paid until a child is 21-years-old if the Order is established by the Court after a trial. There are certain circumstances in which a child may be emancipated before the age of 21, but usually not. Parents are free to agree that child support shall be paid beyond the age of 21 while a child is pursuing a full-time college education, which is often the case as kids commonly reach 21 while in their junior year or early into their senior year of a four-year college program. A judge cannot mandate support beyond 21 unless it is based on an agreement.
A court must determine the basic child support, payable monthly, weekly, or biweekly and also certain add-ons to child support that the law recognizes. Basic child support is payable either direct to the payee or through the Child Support Enforcement Bureau or Support Collection Unit of the County in which the order was rendered. The payee has an absolute right to have support paid through the agency and by garnishment from income, even if the payor has never missed a payment.
The basic child support is intended to cover all expenses of food, clothing, shelter, and all other needs for children that are not covered by recognized add-on expenses under our law.
Certain add-on expenses are mandatory, such as dividing the health insurance premiums for a child’s coverage, dividing health-related costs not covered by insurance, and dividing reasonable child care expenses which enable the primary custodial parent to work or seek work.
Other add-on expenses are discretionary with the court, such as private education costs, college education costs, and costs associated with the special needs or aptitudes of a particular child.
A court will not make any add-on child support designations which are not provided for by law; however, you are free to arrive at other contributions which might be made towards specified costs by agreement, such as extracurricular activities, religious training, cell phone costs, car insurance, and other items.
The basic child support award is arrived at, after trial or by agreement, by using the Child Support Standards Act (“CSSA”). The CSSA is a computation in our law that utilizes the incomes of both parents, certain deductions from income the CSSA recognizes, and the use of percentages for basic child support applied to the combined income depending on the number of children involved (17% for one child; 25% for two children; 29% for three children, etc.).
Usually, parties should expect that the court will apply the guidelines of the CSSA to their combined income up to the cap mentioned in the law which is now $141,000, and which changes mildly every two years. While the court can disregard the guideline computation for combined income under this cap, this is rather uncommon. If there is combined parental income above the $141,000, the court is free to exercise its discretion to apply the child support guidelines percentage to some or all of the income over the cap or to decline the use of the percentage and make its determination as to such excess based upon various factors set forth in the law.
To what income does the CSSA apply? By definition, it is income from all sources, which might include, among other things, income shown on a W-2, interest and dividend income from assets, retirement income, real estate rental income after true expenses, the value of certain employment perks, as well as money, goods, or services provided by a third person.
This income for CSSA purposes is reduced by deductions that the law specifies only for this purpose, which include FICA, Medicare Tax, NYC Income Taxes, and spousal support paid to the payee or children of prior relationships based upon a court order or formal agreement.
Often there is a dispute that can only be resolved by the court after trial or by agreement that concerns the income of each party to which the percentage should be applied. Many people have been known to under report their income on tax returns, are engaged in cash businesses, or choose to temporarily reduce their income while going through the process to limit the amount of support they might have to pay. A judge can base the child support award on the basis of stated income, based upon the income the judge is convinced the parent has but has not admitted, and in appropriate cases, can even impute income based upon the capacity to earn money regardless of the employment status of the support payor.
If left for the court, a judge will determine how to apply the CSSA. If an agreement is reached by the parties, so long as the parties are properly aware of and the agreement recites the computations that would be used if the award were consistent with the CSSA, the parties can agree to deviate from the specified amount of child support so long as reasons are recited that the Court will approve.
Spousal support is also known as spousal maintenance. New York provides for spousal support that is rehabilitative and nature. The court is to keep in mind the standard of living that the parties have enjoyed during the course of the marriage in reaching its determination of the amount of spousal support and how long it should be paid.
Toward the end of 2015, the spousal support laws in New York changed. Whether attempting to compute “temporary” spousal support during the pendency of a divorce action or seeking to determine the award that should be made at the conclusion of the case, similar concepts now apply in both situations – which was not the case before the change in the law.
The court will apply a spousal support computation to the incomes of both parties, up to a cap on the support payor’s income of $175,000, unless it determines that the application of the guideline computation is unjust or inappropriate in a given case. If so, the court must consider various factors in arriving at its determination.
In situations where the support payor has income above the cap of $175,000, the court must consider various factors in arriving at its determination. There are 18 factors the court should consider when arriving at a temporary award to be effective during the pendency of a divorce case, and 20 different factors to be considered for a post-divorce maintenance award.
Insofar as the duration of maintenance is concerned, the law contains advisory guidelines only, which indicate that a marriage from 0 to 15 years should result in spousal support for 15% to 30% of the length of the marriage; for marriages between 15 and 20 years in length, spousal support payable for between 30% and 40% of the length of the marriage; and for marriages lasting in excess of 20 years, 35% to 50% of the length of the marriage. A court is free to deviate from these advisory guidelines so long as its discretion is not abused and its reasons adequately explained to enable reasoned review by a higher court if the decision is appealed.
Modification of Orders
Court Orders can be, and often are, modified. The Supreme Court and Family Court have many modification requests pending and in process at any time. It would be foolish to bring a modification proceeding if there is not an ample basis for seeking that modification. We will gladly consult with you to determine if there is a basis to modify the order to which you are subject or how best to defend against an unwanted modification of an existing Order.
Child Support Orders – If your child support order was set by a judge after trial, you are entitled to seek modification of the order based upon the following:
- A significant change in circumstances since the prior order was rendered;
- A change of 15% or more in the income of either party since the prior order was rendered; and/or
- The passage of three years since the prior order was rendered.
If, however, the child support order you seek to modify was made based upon an agreement reached to settle a case, you will still be absolutely permitted to seek modification if you can establish that a significant change in circumstances has occurred. As for the other two reasons for modification listed above, parties are free to waive those reasons for modification in a written agreement and, if so, those reasons are not available to you.
You should be advised that if your child support order was established in a divorce case as a result of a written agreement between you and your former spouse, due to changes in the law over time, a higher burden of proof – significantly more than a “significant change of circumstances” – may be required, along with a close review of your agreement and the procedural history of your divorce case.
Spousal Support Orders – If your spousal support order was established by a judge after trial, you may properly seek a modification of the order based only on a significant change in circumstances since the order was rendered. However, if your spousal support award was made in a divorce case and based upon a written agreement that you had signed, the burden of proof is likely to be substantially higher, requiring a showing of extreme hardship to modify the order.
Custody & Visitation Orders – All orders respecting child custody and visitation may be modified upon a showing that there has been a significant change in circumstances since the prior order was rendered.
Enforcement of Court Orders
During the course of Family Court proceedings and divorce cases, court orders are commonly made containing various directives, such as child support orders, spousal support orders, visitation orders, orders respecting the disposition of assets, mandatory counsel fee contributions, etc.
Lack of compliance with court orders often results in petitions or other applications being filed in Family Court or Supreme Court seeking to enforce the orders, to find one party in contempt of court, to enter money judgments, to suspend licenses, to garnish wages or assets, and other relief. If you incur counsel fees to bring a proper enforcement action, you may recover some or all of those fees from the other party in the discretion of the Court.
If you are shown to have willfully defaulted upon a lawful order of the court, a variety of penalties may be assessed including the possibility of incarceration.
Appeals to a Higher Court
Our firm has successfully prosecuted and defended many appeals. An appeal typically involves one party asking a higher court to consider the ruling made by the trial court and asking that one or more aspects of the decision be reversed based upon existing law or concepts of fairness.
Every determination made by the Supreme Court in a divorce action after trial is appealable. An appeal requires production of the transcript from the trial and all exhibits which were admitted in evidence during the course of the trial. Your right to appeal an adverse ruling in the Supreme Court will be lost if you do not act immediately after the ruling has been made. Failure to file a required notice of an intention to take an appeal within 30 days of the entry of the underlying order usually results in a complete loss of the right to appeal.
Trial decisions in Family Court can similarly be appealed; however, the process differs depending on what type of order you seek to appeal. If you seek to appeal from an order of support made by a Support Magistrate, there is no immediate right to appeal to the higher court until or unless written “objections” to the ruling are filed in Family Court. When objections are filed in Family Court, there is an initial review of the Support Magistrate’s ruling by a Family Court judge, who has greater powers than the magistrate by law. The Family Court judge may sustain or reverse the findings of the Magistrate. If you still seek to appeal after the judge rules, an appeal can be taken to the higher court. If you seek to appeal the initial order of a Family Court Judge or Referee who has heard and determined your case, a direct appeal to the higher court can be taken. Just as in Supreme Court, if you fail to file objections where required and/or a Notice of Appeal within 30 days, your right to appeal will likely be lost forever.
If you or someone you love is facing the challenges of a family law case, or seeking to appeal a ruling, contact Dikman & Dikman today to arrange an appointment with a Queens divorce attorney.