The Law Office of Chad M. PowersThe Law Office of Chad M. Powers2024-03-18T12:36:33Zhttps://www.cmpowers.com/feed/atom/WordPress/wp-content/uploads/sites/1301880/2020/03/cropped-favicon-holder-chad-powers-32x32.jpgOn Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473992024-03-18T12:36:33Z2024-03-18T12:36:33ZWeighing in other factors
Aside from the parents’ monthly incomes, other factors can affect the court’s determination for support. This includes the following:
Average income: Courts can average the parent’s income over a certain period, such as the past five years, to establish a baseline for payments.
Potential earning capacity: In other cases, courts may consider the parent’s earning potential, such as the income they could be making, given their skills, education and job opportunities.
Previous earnings: If the fluctuating income is a pattern, like in seasonal work, courts can consider the history of earnings across similar periods.
Imputed income: If it seems a parent is underemployed or not earning to their capability intentionally, courts might 'impute' income, which means attributing a presumed income level based on what the parent should be earning.
Other financial resources: Courts may also consider other financial resources available to the parent, such as significant assets that could influence their ability to support their child.
Once courts determine a base level of income through the available factors, it will apply the state’s child support guidelines to calculate the support amount.
Setting expectations
While courts commonly consider the factors mentioned above when parents have no set monthly income, the outcome of each support case will depend on the unique facts and circumstances of the case as well as the judge’s discretion.
Keeping this in mind can help parents maintain their expectations during child support determination, regardless of whether they are the parent requesting or receiving support on behalf of their child or the parent the court will order to pay support. In cases like these, it is advisable to seek the advice of an experienced legal representative to understand the child support determination process.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473952024-03-11T09:27:36Z2024-03-11T09:25:51ZIn a New York divorce, assets are divided according to the equitable distribution principle. This doesn’t necessarily mean a 50/50 split, but a fair division of marital assets between spouses.
The court takes an unbiased approach, basing decisions on each spouse’s contribution to the marital assets and their future financial needs. By law, you could receive more or less than half of the total assets.However, this equitable distribution can become complicated if there are inaccuracies in the valuation of certain assets. What if the court unknowingly assigns assets not accurately valued to a spouse? How can you spot such inaccuracies? These are essential considerations to ensure a truly fair division of assets.
Ways to spot inaccuracies
To protect your financial future, here are several ways to spot potential inaccuracies:
Understand the value of different assets: Realize that some assets have different values. Real estate, businesses and other assets all have unique methods of valuation.
Watch out for asset transfers: Sometimes, a spouse might transfer assets to a third party intending to buy them back after the divorce. Be alert for any such transactions.
Look for sudden decreases in value: If the value of an asset suddenly drops without an explanation, it could be a sign of manipulation.
Consider the timing of asset valuation: The value of some assets can significantly change depending on the timing. For example, the value of a business could vary greatly before and after a significant contract signing.
Minimizing an asset's worth can significantly affect your divorce settlement. For example, if the value of your shared home is underestimated, you might receive less money from its sale during property division. This could limit the funds you can use to invest in a new home or support your lifestyle. If you suspect your spouse isn’t being honest during divorce, it might be time to consider seeking an attorney. They can help advocate for a fair valuation.
Remember, getting each asset accurately valued isn’t just crucial—it’s your right. So, act now. Trying to correct inaccuracies in asset valuation later might involve costly legal fees and a lengthy process, with no guarantee of a change in the division.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473922024-02-27T12:09:49Z2024-02-27T12:09:49ZPursuing an uncontested divorce
When both spouses agree on all the issues surrounding the divorce, including the division of marital properties, spousal support, child custody and visitation, among other relevant matters, they can pursue an uncontested divorce.
This type of divorce still requires parties to file a petition to dissolve the marriage. Nonetheless, parties can generally skip the series of trials as long as they submit to the court a settlement agreement of all the divorce issues. With this, the court will still be involved in the process. However, it will simply review the validity and fairness of the agreement before signing off the settlement terms.
Ways to pursue this type of divorce
Divorcing spouses who want to skip court appearances can opt for nonlitigation methods, such as mediation or collaborative divorce, to end their union. While both have notable differences, they both share a goal to develop a divorce agreement divorcing spouses can submit to the divorce court.
Seeking guidance before making a move
If you are considering filing for an uncontested divorce, it is advisable to consult with a divorce lawyer who is familiar with the laws in your state. They can provide guidance on whether it is possible to reduce court involvement in your particular situation.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473902024-02-21T16:24:37Z2024-02-26T16:23:15Z
Health insurance coverage: If you were on your spouse’s insurance, then you need to come up other plan before your divorce is finalized. If you don’t, then you could be hit with significant expenses that you didn’t expect, as premiums for a private health insurance plan can be costly, and paying for your medical care out-of-pocket can be ruinous. So, be sure to take the costs of health insurance into consideration when you’re negotiating property division and spousal support.
Tax implications: When you’re in the middle of the property division process, your focus is probably going to be on securing as many financial resources as you can. That’s understandable, but you should take tax implications into consideration when you’re negotiating or litigating for these assets. For example, you might want to keep the family home, but if you sell it later, then you might end up having to pay capital gains taxes on it if you already have another primary residence. You can also be hit with a tax penalty if you withdraw money from a retirement account early. Keep these tax consequences in mind as you move through your divorce.
Estate plan issues: If you created an estate plan during your marriage, then you probably specified that your spouse will receive most assets, if not everything, upon your passing. You certainly don’t want that to happen once you get divorced. So, be sure to update your estate plan so that your wealth doesn’t revert to your former spouse upon your passing.
Your well-being: There’s a lot on the line in your divorce, but probably none as important as your emotional and psychological well-being. As you move forward with your divorce, then, make sure you find the support and help you need, whether that be from your family and friends, or from a therapist or other mental health professional. You can’t focus on your future until you take care of yourself.
Craft a comprehensive divorce strategy
A holistic divorce strategy will give you the drive and direction you need to successfully move onto the next phase of your life. That’s why now is the time to start thinking about what you want your divorce to look like and what you want out of the process. By doing so, you’ll hopefully find comfort knowing that you have the custom-tailored divorce plan that will put you on the path to success.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473882024-02-14T16:27:07Z2024-02-14T16:27:07Zcontested divorce when you have exhausted all other options.
How to prepare for your divorce trial
Before you get ready for a trial, consider that most divorce cases settle out of court. Why? Because you and your spouse hold the power to negotiate terms that work for both of you. Through negotiation or mediation, you can reach agreements on various matters, including:
Child custody and visitation schedules
Child support and spousal maintenance
Division of property and debts
These negotiations can be tough and emotionally draining, but they offer a platform for you and your spouse to have direct control over the outcome. A settlement is more than just an agreement; it is a tailored solution that reflects your unique situation, needs and priorities. However, if trial is the only option, here are several steps you can take to prepare:
Gather all relevant financial documents.
Make a list of all assets and debts, including real estate, vehicles and other property.
Write down any specific issues or concerns you have about your divorce, including those matters mentioned above.
Understand the legal standards that a judge will use to make decisions.
Anticipate what your spouse may present in their case
Consider hiring a divorce attorney to represent you in court.
Despite the best efforts to settle, some cases do go to trial. Thorough preparation will be your best ally.
When trial is the only choice
A trial becomes the only viable option when negotiations have reached a standstill, and one or both parties refuse to cooperate. Your attorney will be instrumental in preparing for trial, from strategizing your case to representing you in the courtroom. While the thought of a divorce trial may be intimidating, it can present an opportunity to assert your needs and pursue a favorable outcome.
It is a chance to stand before a judge and advocate for the terms that you believe are just and equitable in your divorce. With skilled legal representation, a trial can be a powerful avenue to achieving the arrangements that align with your interests and goals.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473872024-02-09T11:54:19Z2024-02-12T11:52:51ZJoint custody
Joint legal custody gives both parents equal authority to make decisions regarding the child’s healthcare, education, and other matters relating to the child.
Physical custody refers to which parent the child lives with. If joint physical custody is awarded. Joint physical custody generally means that the child will split time between their parents equally.
If one parent has physical custody for more than half the time, the court will generally consider them the primary custodian and award visitation to the other parent.
What courts consider
Courts will consider several factors, including the following, when determining custody arrangements:
Each parent’s age, health, income, work schedule, and parenting abilities.
Each parent’s parenting responsibilities during the marriage.
Each parent’s ability to encourage the child’s relationship with the other parent.
Living environment provided by each parent.
Child’s preferences (if child is old enough).
Parents’ ability to cooperate with each other.
Child’s relationships with other family members.
History of domestic violence at home (if any).
If you are filing for divorce, you may discuss child custody arrangements with your spouse and try to agree on the terms in mediation. If you are unable to come to an understanding, the court will hear your case and decide for you. Even if you are able to reach an agreement, the court will still review your agreement to make sure that the agreement is in the best interest of the child.
]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473862024-01-30T12:40:49Z2024-01-30T12:40:49Zbecause then you will face severe consequences.
Understanding child support
Child support constitutes financial assistance one parent provides to the other for the upbringing of their child. Typically, child support is court-ordered in a divorce, after separation or between unmarried partnerships. The amount is determined by a formula considering both parents’ incomes, the number of children and other factors. The calculation applies to combined parental income up to $154,000, with the court deciding whether to maintain the same percentage or use a different amount for income exceeding this limit.
Circumstances for child support modification
Child support orders are not immutable, though. They can be altered if there is a significant change in circumstances impacting either the parent’s ability to pay or the child’s needs.
Specifically, in New York, you may qualify for a modification if either party’s gross income changes by 15% or more. You may also qualify if 3 or more years have passed since the last modification or order entry, the custody of the child changes or the child is legally emancipated. You can also come to an agreement with your ex-spouse that can prompt a modification, if formalized in writing and court approved.
Requesting a modification
To initiate a child support modification, filing a petition in Family Court is necessary. Utilizing the online Support Modification Petition program streamlines the process by assisting in completing the required paperwork. Information about your current income, expenses and child support payments, along with the reason for modification, must be provided. Serving the other parent with a copy of the petition and notifying them of the court hearing date and time is essential and required.
Modification hearing
After you request the modification, the court will have a hearing. During the hearing, you or your lawyer presents evidence supporting the modification. Proof of income, such as pay stubs, tax returns or bank statements, can be used. Documentation of significant changes, like job loss, medical conditions, custody alterations or shifts in the child’s needs, should also be provided. The other parent has the opportunity to respond and present their own evidence themselves, or through their lawyer.
The court evaluates the petition, evidence and the best interests of the child to decide whether to grant or deny the modification. Applying the same formula used for the original child support order, unless a valid reason for deviation exists, the court ensures a fair decision.
]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473852024-01-15T07:21:00Z2024-01-15T07:21:00Zacts as a shield against individuals engaging in abusive, threatening or harassing behavior. Beyond restraint, it can encompass relief in various forms, such as Long Island custody arrangements, child support or exclusive residence rights.
Types of orders of protection
In Long Island, individuals can seek orders of protection from three distinct courts: Family Court, Criminal Court and Supreme Court. Each court operates with its unique procedures and requisites:
Family Court Order of Protection
The Family Court Order of Protection pertains to violence within familial or intimate relationships. This order stems from a civil proceeding initiated by filing a Family Offense Petition. It addresses situations involving current or former spouses, individuals with a child in common, blood or marriage relations or those in an intimate relationship.
Family Courts can issue temporary or final orders lasting up to 5 years. They can encompass directives for the abuser to stay away, mandate abusers vacate the shared residence, mandate they adhere to custody arrangements, provide financial support to victims, make abusers attend counseling and force abusers to relinquish firearms.
Criminal Court Order of Protection
The Criminal Court Order of Protection emanates from criminal cases. This order does not require a separate filing and is typically requested by the prosecutor on behalf of the victim.
This type is applicable to any crime committed against the victim that lacks the relationship constraints present in Family Court Orders. Terms may include staying away from the victim, vacating the residence, following custody arrangements, paying restitution, attending counseling and surrendering firearms. A Criminal Court order of protection extends until the conclusion of the criminal case or, in some instances, the duration of probation or imprisonment.
Supreme Court Order of Protection
The Supreme Court Order of Protection is embedded within divorce or criminal proceedings. A Supreme Court Order can be obtained by filing a motion or order to show cause. It encompasses directives similar to those in Family and Criminal Court orders and remains effective until the culmination of the legal proceedings.
]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473832024-01-04T16:16:21Z2024-01-01T16:08:54ZHow hard should I fight to keep the family home after my divorce?
Many people feel strongly about their family residence. The home may have a lot of equity in it that they were counting on in their long-term financial planning.
Also, family homes often mean a lot both to a couple and to their children. After a divorce, both the parents and the court may feel like ensuring the children stay in the family home is a good thing.
There are some good questions a person should ask before deciding whether to request the family home and how hard to push for what they want:
Can I afford the home? Keeping up a home means paying the mortgage, taxes, maintenance, utilities and other expenses.
How much will have to pay to buy out my spouse’s interest in the home? Likely, the person’s spouse will be entitled to a share in the home’s value, and the person keeping the home will have to figure out how to make that up.
Do I have good enough financial standing to get my spouse’s name off the mortgage?
Do I really want to stay in the home, or would moving better serve my long-term goals?
Even after asking these questions, a Long Island resident should make sure they understand all their options and alternatives.]]>On Behalf of The Law Office of Chad M. Powershttps://www.cmpowers.com/?p=473822023-12-18T22:45:49Z2023-12-15T22:43:04ZRetirement accounts as marital property
First, retirement accounts are considered marital property in New York. This means that they are subject to equitable distribution in the divorce property division process. This applies to all types of retirement accounts, including 401(k)s and IRAs.
Not all of the retirement account may be marital property
However, not all of the retirement benefits are necessarily marital property. Only the portion of the benefits earned or accrued during the marriage is subject to division. Any benefits that were earned or accrued before the marriage or after the separation are considered separate property and belong to the individual spouse.
Majauskas formula
To determine how much of the retirement benefits are marital property and how they should be divided between the spouses, New York courts use a formula that was established by the landmark, Majauskas v. Majauskas. The formula is as follows: marital portion of retirement benefits = total accrued benefits x (months of contributions during marriage / total months of contributions) x 50%
How is the marital portion split?
The marital portion of the retirement benefits is then, generally, divided equally between the spouses. Though, the judge could find that there are factors that justify an unequal distribution.
Some of the factors that courts may consider are for an unequal distribution include the income and assets of each spouse, age and health of each spouse and the contribution each spouse made to the retirement benefits themselves and the marriage itself. The judge also looks to the length of the marriage, any tax consequences and anything else the judge believes is relevant.]]>