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ENROLLMENT IN KINDERGARTEN CAN CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING A REDUCTION OF CHILD CARE CONTRIBUTIONS

DIVORCE & CHILD SUPPORT LAWYER NASSAU CTY, NY

Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that a Child Support Downward Modification Petition should be filed by the non-residential parent where a child has enrolled in kindergarten, resulting in a significant reduction in actual child care expenses.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that the father had met his burden of proof of a substantial change in circumstances where the parties child had enrolled in kindergarten, resulting in a substantial reduction in child care expenses.

The Court affirmed the finding of the Family Court and reduced the father’s obligation to the pro rata share of the reasonable and actual childcare expenses paid by the mother.

I suggest that it is prudent to verify the actual childcare expenses incurred if there is a change of employment by the recipient parent or the enrollment in kindergarten. Enrollment by the child in school district based after school programs should also be scrutinized by the parent paying childcare expenses. While child support may not change if the only change in circumstances is the enrollment of a child in kindergarten, the amount of out-of-pocket childcare costs are subject to a downward adjustment.

I have been litigating Family Court Child Support Modification cases throughout my career. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, by phone at 516-747-2290 if you are interested in discussing your matrimonial, divorce, child support or family law matter.

Due to the pandemic, I conduct telephone or in office consultations. My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce & Child Support Lawyer Long Island, NY

WHEN YOUR SPOUSE HIRES AN ATTORNEY THAT YOU PREVIOUSLY TALKED TO, THE KIND OF INFORMATION THAT WAS DISCUSSED WILL DETERMINE WHETHER YOUR SPOUSE’S ATTORNEY WILL BE DISQUALIFIED BY THE COURT

DIVORCE LAWYER Nassau County, NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 34 years of experience suggests that when interviewing attorneys to handle your divorce case, it is important to keep a record of the topics discussed during the meeting.

In a recent case decided by the Appellate Division, First Judicial Department, the Court was presented with a situation where the wife had met with and had follow up calls with an attorney. Apparently, the wife provided that attorney with financial information. That same attorney was a partner in a firm hired as co-counsel to represent the husband a few years later. This presents an issue of a potential conflict of interest on the part of the firm acting as co-counsel which could result in the disqualification of the firm. The Appellate Court determined that there was no basis to disqualify co-counsel for the
husband based upon a conflict of interest as there was no proof that the information was significantly harmful to the wife. The Court found that the financial information that the wife gave to the attorney in question was subject to discovery in the divorce case. Discovery is a process where information and documents are exchanged by the parties in a divorce case. The Court also found that the financial information was already known by the husband.

The question is whether the result would have been different in that case if the wife had imparted information concerning issues such as marital fault, domestic violence, or custody and visitation issues. These issues are not subject to discovery in parts of the State of New York. In the First Department, none of these issues would be subject to discovery. That is why it makes sense to keep a record of the subject matter discussed during an attorney consultation, as that same attorney could be hired by your spouse. These issues arise from time to time and no litigant wants to be in a position of having to assess whether the attorney on the other side possesses significantly harmful information that can adversely impact his or her case.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 32 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family by phone at 516-747-2290.

I am conducting telephone and in person consultations during the pandemic, by appointment. My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer, Nassau County NY

WHAT I LEARNED DURING MY PERSONAL APPEARANCE IN THE COVID-19 NASSAU COUNTY FAMILY COURT IN CONNECTION WITH A TEMPORARY ORDER OF PROTECTION PROCEEDING

Family & Divorce Lawyer Nassau County NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator
with over 34 years of experience recently made a personal appearance with a litigant seeking an Order of Protection in the Nassau County Family Court. These are my informal observations and suggestions for any party seeking an Order of Protection in Nassau Family Court during the pandemic lockdown, pending the re-opening of the Westbury, New York Courthouse

First things first, the Court is temporary situated in Mineola at 262 Old Country Road.
The entrance to the temporary Court is located on Old Country Road. I suggest that if time permits, download a copy of the Nassau Family Court case information sheet from the “Nassau County Family Court petitions and forms” web page. Fill it out beforehand to save time. When you arrive, you will encounter a Court Officer. If you inform the officer that the forms for an Order of Protection are needed, you will be provided with a blank form set. You may not be permitted inside the Courthouse while you prepare the paperwork, so bring a clipboard to write on. It makes sense to write down (or type) the details of the event or events which underlie the application for the Order of Protection and bring that document with you to Court. That document can be attached to the handwritten Petition and made a part of it. If not prepared in advance, you will have to write out the details of the event(s) within the Petition form following your arrival at the Courthouse. If you have questions concerning preparation of the Petition form, you can ask to speak to one of the Court Clerks for assistance.

Once the paperwork is completed and carefully reviewed, let the Court Officer at the
building entrance know that the forms can be filed with the Court. Then you will have to wait for your case to be called. Once your case is called, you will be brought into an empty courtroom. The Judge, Court Clerk and Court Officer will be teleconferencing the case. Basically, you and the escorting Court Officer will be the only persons present, the Court staff will be appearing remotely. It is the equivalent of a Zoom teleconference. You will be sworn in and questioned by the judge. A decision will be made then and there as to whether you qualify for an Order of Protection and the terms will be placed on the record by the Judge. Then you will be escorted out of the Courtroom and will have to wait outside the building for the written Temporary Order of Protection to be prepared. I suggest that the applicant wait for the Temporary Order of Protection in all instances. The Temporary Order of Protection will be served by an agent of the Court on the other party. I suggest that the raised seal official copy always be kept in reach of the applicant. If the police are summoned, it is important for the responding officers to have the raised seal official copy available for review, so they act accordingly.

I have been litigating Family Court cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

I am conducting telephone and virtual video consultations during the pandemic, by appointment. If you want to have a telephone or virtual video consultation, please call my office to arrange one. I am also available to conduct the consultation in person at my office.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer Nassau County NY

IF A PARTY IS NOT COMPLYING WITH DISCOVERY IN A NEW YORK DIVORCE, ONE MUST CONSIDER THE TACTICAL IMPLICATIONS OF A MOTION TO STRIKE THE PLEADINGS OF THE OFFENDING PARTY

DIVORCE LAWYER LONG ISLAND NY

Michael Stern, Esq., a New York matrimonial and family law attorney and mediator

with over 34 years of experience suggests that unless the offending party is the Plaintiff and the other party does not want a divorce, the best approach is to seek an Order of Preclusion as to evidence and testimony, as opposed to striking the pleadings of the offending party.

In a recent case decided by the Appellate Division First Judicial Department, the Court

was presented with a situation where the offending party did not comply with demands for financial information. As a sanction, the lower Court had struck the offending party’s pleadings (which refer to the grounds for divorce and relief requested by that party). The Appellate Court found that the offending party was not precluded from presenting evidence and testimony at the trial. It found that the trial Court had correctly ruled that the reason for the inadmissibility of her evidence was due to the evidence being unenforceable and incomplete hearsay documents. The stricken pleadings did not bar or impair the offending party from presenting the documentary evidence.

This is an interesting decision due to the tactical considerations that a litigant must

choose where the other party is holding back financial records. Certain Courts in New York incorporate a provision in the order made at the very first Court conference (e.g. the preliminary conference) in a divorce case that mandates that one party or the other will proceed with a ground for divorce at trial. That mandate cannot be altered without the consent of the parties or by Order of the Court. An Order to strike the pleadings of a party who is designated in the Order to proceed with the grounds for divorce at trial is of no usefulness whatsoever if both parties want a divorce. In that case, the other party will proceed with the divorce and the offending party gets away with the misconduct, unless counsel fees are awarded to the other party at trial.  If one party does not want equitable distribution of marital property (which is a consequence of a New York divorce), then striking the pleadings of the party who is designated as the party to take the divorce at trial can result in a dismissal of the divorce action. If the “no fault” ground is stricken, then a marital fault ground would have to be the basis of any subsequent divorce case. In the case decided by the Court, the offending party appears to be aggrieved, but the reason is not attributable to the well-founded tactical decisions made by the other party in that case.

My belief is that the better practice for other party in that case would have been to seek the alternative sanction of obtaining an Order precluding the offending party from offering evidence or testimony at the trial.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer, Nassau County NY

DOWNWARD MODIFICATION OF CHILD SUPPORT FOLLOWING A LAYOFF DUE TO THE CORONAVIRUS, COVID-19 REQUIRE CERTAIN PROCEDURES FOLLOWING THE CLOSURE OF NASSAU COUNTY FAMILY COURT

FAMILY LAWYER NASSAU COUNTY NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience is available to assist litigants in the preparation of the documentation needed to file a downward modification of Child Support Petition in the Nassau County New York Family Court.

If you have been the victim of a permanent lay off from your job, suffered a business closure or similar situation, my office is available to assist you in filing the Order to Show Cause, petition and information sheet as well as represent you in front of the Support Magistrate when the Court’s reopen.

Generally speaking, a person who suffers an involuntary layoff (of a non-temporary nature) which is not attributable to the actions of the employee, must file a petition for downward modification to obtain relief from the accrual of child support arrears in the New York. The Court has discretion to deny applications where the disruption of employment is temporary. In the event of a permanent layoff from a job, the affected employee should be maintaining detailed records of his or her search for a new job until the court hearing is completed.

A downward modification case is typically started by the filing of an information sheet and a petition for a downward modification with the Family Court Clerk’s Office at the Courthouse in Westbury, NY. The filing date is critical as any adjustment in the amount of child support will be retroactive to the filing date if the application is successful. For the time being, the procedure has been changed.

Following the interim shutdown of the New York State Courts, except for “essential matters” due to the coronavirus, on March 17, 2020, I went to the new location for the Family Court Clerk’s office and discussed the procedure for filing a downward modification in the Nassau County Family Court with the clerks at the reception desk.

I was informed that the Clerk’s office would accept new petitions, but a petition alone would not suffice. I was told that an Order to Show Cause would have to be filed with the petition, which would then be presented to the Judge presiding for signature. The Judge would then assign a date for hearing the matter. This would lock in the date for retroactive application of any order if the applicant is successful.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. I encourage you to read the client testimonials on my website. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family by phone at 516-747-2290.
My Long Island office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

AN EVIDENTIARY HEARING ON FINANCIAL ABILITY TO PAY CAN BE REQUESTED TO RE-APPORTION THE FEES OF THE ATTORNEY FOR THE CHILD IN NEW YORK CHILD CUSTODY CASES

DIVORCE & CHILD CUSTODY LAWYER, NASSAU COUNTY NY

H. Michael Stern, Esq., a New York divorce and family law attorney with over 34  years of experience suggests that a hearing on the ability to pay should be requested if  circumstances warrant and a party disagrees with the apportionment of fees directed by the Court to pay the Attorney for the Child (referred to as the “AFC”). Attorneys for the Child are routinely appointed by the Courts in New York to represent the child’s interests and to espouse the child’s position (if known) in child custody and child visitation proceedings. In Family Court cases, there are no fees for the Attorneys for the Child. Fees are directed and typically apportioned in Supreme Court divorce cases (and Writs of Habeas Corpus).

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court was presented with a situation where an Attorney for the Child was appointed to represent the children’s interests in the child custody proceedings before the Court. The Supreme Court directed that the fees of the Attorney for the Child be equally divided by the parties without considering the parties finances and presumably determining each party’s ability to pay the Attorney for the Child’s fees. As a party in the case had made a motion to the trial Court to re-apportion the Attorney for the Child’s fees, the Appellate Division determined that it was appropriate to direct a hearing to examine each party’s finances (and implicitly their respective ability to pay). The trial Court was directed to make a new determination concerning responsibility for the Attorney for the Child’s fees following the hearing.

From a practical perspective, it makes sense to examine whether circumstances warrant a re-apportionment motion. An examination of the facts should be undertaken to determine if there is a meaningful disparity of income or resources between the respective parties to the child custody dispute.

I have been litigating divorce cases throughout my career. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce, child custody, child visitation or family law matter by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. MICHAEL STERN, Divorce & Child Custody Lawyer

PROOF IS NEEDED TO COLLECT A CHILD SUPPORT ADD ON DURING A NEW YORK FAMILY COURT ENFORCEMENT PROCEEDING

CHILD SUPPORT LAWYER NASSAU COUNTY, NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that a child support recipient cannot make a claim for arrears for a child support add on, if the expense was not previously paid by the claimant. In New York, any Court ordered payment for a child that is made in addition to child support is called an “add on.”

For illustration only (as an example unrelated to the Court case discussed below), let us say that PARENT A is directed in a judgment of divorce to pay the dental expenses of the child. A bill for $500.00 is submitted to PARENT A for the cost a set of dental x-rays for the child. PARENT A ignores the bill. PARENT B commences an enforcement proceeding to collect child support arrears, including $500.00 for the x-rays. The catch is that PARENT B hasn’t paid that bill before the Family Court hearing date. Can PARENT B collect the money for the dental bill under these circumstances.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that to claim an add on expense as a child support arrearage, the parent/claimant must not only pay the bill, but the parent claimant must also provide the Court with admissible evidence of the payment of the expense at the hearing to be entitled to a money judgment for that add on expense. The Court determined that while the parent/claimant in the case before the Court had testified that payments for add on expenses were made, no proof of the payments were admitted into evidence during the hearing. The other party challenged the amount of the money judgment issued by the Family Court on appeal and prevailed. The Appellate Division directed a new hearing to fix child support arrears.

Proving child support arrears involve complex issues of evidence law. Trial objections can be raised to preclude the admission of evidence, frustrating bona-fide claims for child support arrears. This can result in no recovery for the parent/claimant where funds should have been recoverable.

My suggestion is that enforcement hearings should never be undertaken by unrepresented litigants on either side of a claim for the fixing of child support arrears.

I have been litigating Family Court child support enforcement cases throughout my career. Recent child support case results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 33 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. MICHAEL STERN, Divorce & Family Lawyer, Long Island, NY

IN NEW YORK, THE COURT CAN COMPEL THE SHARING OF ONE PARTY’S STUDENT LOAN DEBT FOLLOWING THE DIVORCE

DIVORCE LAWYER NASSAU COUNTY, NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that Student Loan debt incurred during the marriage may be apportioned by the Court under certain circumstances.

A 2019 case in the Appellate Division, Second Judicial Department, the Appellate Court determined that when a party incurs student loan debt during the marriage, the Court can compel the other spouse to pay a portion of the outstanding student loan debt, if the marriage benefitted economically from the education received by the debtor spouse. If there is no economic benefit to the marriage resulting from the educational pursuit of the party incurring student loan debt, the law has been that the student debt becomes the sole responsibility of the party incurring the debt. This was the case even though the student debt was marital debt, incurred during the marriage. In a recent case the Appellate Division carved out an exception holding that if income to the household is derived from the degree obtained by the debtor spouse, the Court can make the other responsible for a portion of that debt. However, the apportionment of debt was not equal, with the Court making the non-debtor spouse responsible for a little more than 38% of the debt.

From my point of view, it is now important to analyze:
(1) the amount of student debt incurred during a marriage;
(2) the income earned by the debtor spouse following the attainment of the trade, degree or certification;
(3) the earning differential between pre-education earnings and post education earnings;
(4) the length of time that such income was generated and;
(5) the disposition of those earnings following receipt by the debtor spouse. This information is critical to determine a party’s position for settlement or trial.

I have been trying divorce cases since 1987. My goal first and foremost is to win at trial
when a settlement cannot be reached in the case. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 33 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, Long Island.

Written by: H. Michael Stern, Divorce & Family Lawyer, Garden City NY

A DISTRIBUTIVE AWARD CAN BE AWARDED TO RESTORE MARITAL FUNDS USED BY A PARTY TO ENHANCE THAT PARTY’S SEPARATE PROPERTY PENSION BENEFITS

DIVORCE LAWYER LONG ISLAND, NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that a distributive award may be available to compensate for the use of marital funds for the buy back of pension credits used to enhance the value of the other party’s separate property pension benefits.

In a 2019 case determined by the Appellate Division, Second Judicial Department, the Appellate Court determined that where a party, during a marriage, uses funds earned during the marriage to buy back “pension credits” to enlarge the value of that party’s separate property pension, that a distributive award (e.g. an award of money) can be made to the other party to cover all or part of the cost of those pension credits.
This is significant because a pension earned prior to the marriage is separate property which is not subject to equitable distribution by the Court in a New York divorce case. In certain cases, there may be no practical way to determine the amount of the enhanced value that the pension credits add to the separate property pension. Pension plan administrator do not have to cooperate with the inquiry. Oftentimes, the pension plan administrator is not within the State of New York, so there is no means to compel cooperation.

Moreover, if there are insufficient funds to hire an expert to do that calculation at trial, the distributive award is an inexpensive and easy way to recover all or part of the marital funds used to pay for the pension credits.

A distributive award may be granted if a party can prove that the pension credits were purchased with marital funds during the marriage and provide the Court with the cost of the pension credits.

I have been trying divorce cases since 1987. My goal first and foremost is to win at trial when a settlement cannot be reached in the case. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 33 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. MICHAEL STERN, Divorce & Family Lawyer, Nassau County, New York.

DON’T LET THAT COURT ORDERED LIFE INSURANCE POLICY LAPSE AS IT COULD LEAD TO A WINDFALL FOR THE EX-SPOUSE BENEFICIARY!

DIVORCE LAWYER, NASSAU COUNTY NY

H. Michael Stern, Esq., a New York divorce and family law attorney with over 33 years of experience suggests that a party ordered to maintain life insurance should not permit the life insurance policy to lapse as the Court can impose severe financial penalties to the formerly insured party in favor of the ex-spouse beneficiary.

In a recent case determined by the Appellate Division of the Supreme Court, Third Judicial Department, the Court faced a situation where the trial Court had directed the husband to maintain life insurance for the wife. Prior to the divorce judgment, the policies lapsed. The husband was well into his seventies and the wife maintained that it was highly unlikely that he was insurable.

The Appellate Court modified the judgment directing the husband to pay the wife the total cost of the remaining premiums on the policy AND the cash value of the policy at the time of the lapse. This resulted in an order to pay the ex-spouse beneficiary over $126,000 within 90 days of the decision of the Court. Accordingly, every effort should be made to prevent the lapse of a life insurance policy which is the subject of a Court order as the Court has the option of resorting to a drastic financial remedy similar to the case mentioned in this blog.

While it should be noted that the insured spouse in the subject case was of advanced age, this remedy may not be available if a new substituted policy of life insurance is obtained by the party ordered to maintain the policy following the lapse. However, the issue of whether a party is uninsurable or not appears to be a critical factual issue if a request for monetary compensation is made. Moreover, the issue of the value of the life insurance to be maintained following the divorce appears to be a substantial issue for trial, if a parties medical history renders that party uninsurable or, the policy premiums are likely to become unaffordable over time.

I have been trying divorce cases for over 33 years. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over three decades.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in a free consultation to discuss your matrimonial, divorce or family law matter by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer Long Island NY