THE FAILURE TO TIMELY FILE A FINANCIAL AFFIDAVIT IN A FAMILY COURT SUPPORT CASE CAN RESULT IN AN ORDER PREVENTING THE RESPONDENT FROM OFFERING EVIDENCE OF INABILITY TO SUPPORT THE CHILD
DIVORCE & CHILD SUPPORT LAWYER NASSAU COUNTY NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that it is important for a Respondent in a Family Court Support Case to timely file a financial affidavit or risk an Order of Preclusion.
In a recent case determined by the Appellate Division, 2st Department in New York, the Appellate Court affirmed a decision of the Family Court to determine child support based on the needs of the children due to the father’s failure to file a financial affidavit within the time proscribed by the Court. What is of interest in the case is that the father was not concealing his income, he produced his last two years of tax returns in Court. The Family Court Support Magistrate explained to the father that absent full financial disclosure, child support would be determined based on the needs of the children. The case was repeatedly adjourned, and the father failed to follow the Court’s directive to prepare and file his financial affidavit. Generally, the law requires that the financial affidavit be filed no later than ten days after the first Court date in the case. The Court can extend this deadline and gave the father (in the case under discussion) numerous chances to cure his default in filing. He failed to abide the Courts instructions. As a result, the Family Court blocked him from offering any evidence or testimony that he was unable to pay child support. Thus, the Family Court Ordered child support based upon the needs of the children (as opposed to a Child Support Standards Act guidelines formula calculation). The father was unable to put in a defense of inability to pay.
What is not discussed in this case is that there is another way to defend a support case where an Order of Preclusion is issued. An Order of Preclusion prevents a party from offering evidence, it does not block a party from vigorously cross-examining the petitioning party. Accordingly, if the petitioning party has inflated his or her expenses, or has not declared all available income and resources, there is still a basis to substantially reduce a child support award where the needs of the children are being determined by the Court.
This situation is not unusual. Many people fail to disclose income, work off-the-books, or pay insufficient or no income taxes. Many litigants get caught in the conundrum of how to proceed where their luxuriant lifestyles do not equate to their incomes and resources. This is a situation that I have encountered several times during my more than three decades of practice.
I have been trying Divorce cases and Family Court hearings 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 for more than 30 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 child support, matrimonial, divorce or family law matter at email@example.com or 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, New York.
Written by, H. MICHAEL STERN, Divorce & Family Lawyer