When a couple finalizes a divorce or family law matter, the judge's decision is legally binding. Whether a couple goes to trial or utilizes mediation to come to a conclusion, the judge will always have the last word on divorces and child-related issues. Judges will often decide on important issues including:
Child custody and visitation
After the orders and judgments are detailed and passed down, they are legally binding and only post-judgment modifications will allow for deviation. Long Island courts understand that circumstances change. If either spouse has significant changes to their situation, the court will hear their claim and judge accordingly.
When parents separate and children are involved, child support will commonly be a factor in the case. Whether ordered through trial or mediation, things change and parents may need to modify payments. To obtain a child support modification, a parent must demonstrate a significant, unforeseen, and continuing to change the situation to the court. Some of the factors that constitute a significant change of circumstances include, but are not limited to:
The loss of employment
Increase or decrease of income
Change of custody
Similar to child support, spousal maintenance also requires an unforeseen major and continuing change in circumstances to one or either spouse regarding the ability to pay the support or the other spouse's need for the maintenance. Some relevant factors when requesting a spousal maintenance modification include, but are not limited to:
Ability to be financially independent
Loss of employment
If the paying spouse has been found to be voluntarily underemployed or unemployed in order to avoid or modify the payment structure, the court will judge against the paying party, adjusting maintenance according to their potential earning capacity
Similar to the other issues that constitute post-judgment modifications, child custody, and visitation schedules also can be reviewed and adjusted if a spouse can demonstrate a substantial and ongoing change of circumstance. The court will hear arguments for modification if it relates to the best interests of the child. Some relevant factors when requesting a change in child custody and visitation schedules can include:
Medical issues with the child or parent
Change in a parent's work schedule
Negative change in school performance
Exposure to third parties that pose a danger to the child's best interests
To discuss modifying your judgment, contact Abraham & Jesselson Law Group, LLC for a consultation.
When a divorce or family law matter is resolved, the appropriate court will issue an order that is legally binding. An order by the court requires an individual to do or cease doing something. Courts issue orders that deal with a range of topics. In divorce and family law cases, they usually revolve around:
Child custody and visitation
Division of marital property
Unfortunately, there are times when one party may not comply with the court's order. In these cases, the other party may have no choice but to ask the court for assistance with enforcing the original order. Sometimes, an order for child support and custody, spousal maintenance, or division of assets is violated. A spouse may request the court's assistance through an enforcement petition or "violation petition" in the family court in the county where they reside. The court must establish a willful violation. In the case of child support, a sworn testimony as to the non-receipt of ordered payments is evidence enough to establish a willful violation. It is the burden of the defendant of the petition to demonstrate why they are unable to comply. They must demonstrate overwhelming evidence as to why they cannot comply in order to avoid a willfulness finding.
Child support is usually a large part of a family court case. Both parents are responsible for their part in supporting their child until the age of 21. Usually, the noncustodial parent will pay more for child support. When a payer ignores a court order, there are a few options for the court to enforce the law. In most cases, the court can authorize the Support Collection Unit (SCU) to garnish wages straight from their paycheck, order a lump sum payment, and other strategies to help the payee recover what is owed. The violator may also be held in contempt of court and appropriate punishments may apply.
Sometimes, a family court will give custody and visitation rights to one party and the custodial party ignores the court order. In these cases, there is no money exchanged and the enforcement of the order can be complicated. If the custodial parent violates the order allowing the other an appropriate custody and visitation schedule, they may have the order overturned as punishment for their action against the court. This violation can also constitute contempt of court for refusing to follow the judge's order.
Similar to child support enforcement, New York courts will help payees recover support from court order violators. If the case involves children, the SCU can help the payee recover both child support and spousal maintenance. If children are not involved, SCU may not be utilized. The court system is still authorized to help enforce the law. An income execution is an enforcement order that mandates the employer of the payer to deduct the support and any arrears from his or her paycheck and send money straight to the payee. An attorney can help their client through this process. The court also has the authority to order the employer to garnish wages. Similar to other cases, there could be punishment for being found in contempt of court.
Marital property division is an important topic in any divorce. Both parties have emotional attachments to their shared property and it might be overwhelming to relinquish marital items. New York courts equitably divide property according to what is fair and just to the couple. Similar to the case of child custody, if a person defies the court order, the court can adjust the award in favor of the complying spouse or find the person in contempt of court. To discuss enforcing your judgment, contact Abraham & Jesselson Law Group, LLC for a consultation.