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3 Important Factors in Extending Orders of Protection

Gary Port
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3 Important Factors in Extending Orders of Protection

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Is it Possible to Get an Order Extending Orders of Protection in New York

Extending Orders of Protection when it is due to expire is possible on a showing of “good cause.”

The first and most important thing to know is that extending an order protection only works if it was issued by the Family Court. An order of protection issued by the Criminal Court cannot be extended once it has expired.

Orders of Protection: The Basics

Under ordinary circumstances, a Family Court will issue a final order of protection.

Before we discuss extending orders of protection, let’s address what it is in the first place.

Understanding Family Court Orders of Protection

  1. Defining an Order of Protection: A Family Court Order of Protection is a court-issued directive that prohibits certain actions or contact between two individuals. It aims to prevent further abuse, harassment, or violence and ensure the safety of the petitioner. This type of order can be obtained through Family Court and is applicable in cases involving familial or intimate relationships.
  2. There Must be a Violation of the New York Penal Law: Merely being mean is not enough. There must be a violation of specific sections of the penal law, such as assault, harassment, and stalking.
  3. Scope of an Order of Protection: An Order of Protection can impose various restrictions on the respondent. These may include staying away from the petitioner, their home, workplace, or school. The order may also prohibit any form of contact, such as phone calls, texts, or emails. However, exceptions can be made for visitation arrangements involving children.
  4. Types of Family Court Orders of Protection: Family Court can issue two types of orders: full orders of protection and limited orders of protection.a. Full Order of Protection: A full order of protection requires the respondent to maintain complete distance from the petitioner and refrain from any form of abuse, harassment, or threats. The respondent must stay away from the petitioner’s home, workplace, and other relevant locations.b. Limited Order of Protection: A limited order of protection allows for some level of contact between the parties involved. However, the respondent is still prohibited from engaging in abusive or threatening behavior.

Obtaining a Family Court Order of Protection

  1. Filing a Family Offense Petition: To initiate the process of obtaining a Family Court Order of Protection, the petitioner must file a family offense petition with the Family Court clerk. This petition outlines the specific incidents of abuse or violence and the relationship between the petitioner and the respondent.
  2. Eligibility for a Family Court Order of Protection: The petitioner must have a qualifying relationship with the respondent to seek a Family Court Order of Protection. This can include being current or former spouses, having a child together, or being related by blood or marriage. Additionally, a current or former intimate relationship can also establish eligibility, even if there was not a sexual relationship.
  3. Petition Review and Temporary Order of Protection: After submitting the petition, the petitioner will appear before a judge who will review the details and determine whether there is sufficient cause to issue a temporary order of protection. This temporary order remains in effect until a future court date is scheduled.
  4. Serving the Respondent: It is crucial to serve the respondent with the order of protection to ensure its validity. In New York, the New York City Sheriff’s Office or the local police can assist in serving the order. Alternatively, a trusted individual over the age of 18, who is not a party to the case, can serve the order on behalf of the petitioner.

Family Court vs. Criminal Court Orders of Protection

  1. Family Court Orders of Protection: Family Court can issue orders of protection in cases involving familial or intimate relationships. These orders are obtained through the filing of a family offense petition and are focused on preventing further harm and maintaining the safety of the petitioner.
  2. Criminal Court Orders of Protection: In situations where the abusive behavior results in criminal charges, Criminal Court can issue orders of protection during the arraignment process. These orders are temporary and remain in effect until the case is resolved. They can provide additional protection for the victim and may be incorporated into a plea deal or sentencing.
  3. Supreme Court Orders of Protection: Supreme Court, as part of divorce or criminal proceedings, can also issue orders of protection. These orders are typically granted in cases involving ongoing divorce proceedings where the safety of the parties involved needs to be ensured.

Duration and Modification of Family Court Orders of Protection

  1. Temporary Order of Protection: A temporary order of protection is issued immediately after filing for an order of protection and remains in effect until the next court date. It can be extended if necessary.
  2. Final Order of Protection: A final order of protection is issued when the case results in a conviction or when a judge determines that a family offense has been committed. It can last for a specified duration, typically one or five years, depending on the circumstances.
  3. Modifying an Order of Protection: Either party can request a modification of the order of protection. The court may consider changes to the order based on the circumstances, such as adding visitation provisions or altering the level of contact allowed.
  4. Extending an Order of Protection: If there is a valid reason, an order of protection can be extended beyond its expiration date. This extension ensures continued protection for the petitioner.

Violating a Family Court Order of Protection

  1. Consequences of Violation: Violating a Family Court Order of Protection is a crime. If the respondent violates the order, the petitioner should report the incident to the police. In emergency situations, calling 911 is appropriate. Non-emergency violations can be reported at a local police precinct or in Family Court.
  2. Reporting a Violation: If the petitioner has a Family Court order of protection, they can choose to report the violation to the police, file a violation in Family Court, or pursue both avenues simultaneously. Reporting a violation ensures that legal action is taken against the respondent.

Expired Orders of Protection and Extending Orders of Protection

When the order expires, it is done. However, under the Family Court Act, the petitioner can make a motion extending the orders of protection past the expiration for “good cause.”

“Good cause” is not defined in the statute. So, what the heck does that mean and how can we seeking extending orders of protection?

Recently, in a court involving extending orders of protection an appellate court addressed this issue. The court recognized that “good cause” is not defined but pointed out that this not an obscure term.

The court looked to various factors which would establish good cause: the nature of the relationship, the original circumstances which led to the order of protection, the state of relationship at the time of new request, frequency of interaction between the parties, any subsequent domestic violence, or violation of the previous order and whether current circumstances are such that there is a concern for the safety and well being of the petitioner.

In the case the court was looking at: (1) the parties had a child in common, (2) they continued to interact, (3) the child exchange occurred at a police, (4) the respondent has a history of assaulting the petitioner, (5) and since the original order the respondent pleaded guilty to disorderly conduct and was issued a two year order of protection by the criminal court (in addition to the Family Court Order) to stay away from the petitioner.

In this case, the court found “good cause.” So, now we have some guidance on extending orders of protection.

Remember never compromise your safety. Here’s the link to the New York State Domestic Violence Hotline: http://www.opdv.ny.gov/help/dvhotlines.html

Call Port and Sava for a Free 15 Minute Telephone Consultation

Call Port and Sava at (516) 352-2999 for a free telephone consultation.

The 3 Important Calculations for Spousal Support (Alimony)

Gary Port
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The 3 Important Calculations for Spousal Support (Alimony)

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New York Spousal Support

Spousal Support (no longer called Alimony) or Maintenance is the money one spouse pays to another after the divorce. It is based upon who makes more money, and the length of the marriage. It is not automatically given to the wife.

Frequently Asked Support Questions

The most common question is: Do I have to support my wife after the divorce? It is important to note that a wife does not automatically get support/maintenance. In fact, if she makes more money than her husband, she could end up paying him.

The second most common question is: How much do I have to pay my wife or husband? The amount is based upon a mathematical calculation between the parties’ two incomes.

Spousal Support for Divorces Filed After January 2016

Since January 2016, New York has had a mandatory Spousal Support (Alimony)  law that will apply to all New York divorces filed on or after January 25, 2016.  Post-divorce support (alimony) is no longer left up to the judge but is now based upon a mathematical formula.

If your support order was issued before January 2016, or your divorce was filed before January 2016, nothing below will apply to you.

Introduction to The Law in New York

Spousal support/maintenance, also known as alimony, is a payment made by one spouse to the other after a divorce. This payment is usually made to the lower-earning spouse to ensure that they are not left in financial hardship after the divorce. It is intended to help the lower-earning spouse maintain a standard of living that is similar to what they enjoyed during the marriage.

What is Spousal Support/Maintenance?

Spousal support/maintenance is a legal obligation that is imposed on one spouse to provide financial support to the other spouse after a divorce. It’s purpose is to ensure that the lower-earning spouse is not left in a financially vulnerable position after the divorce. The payment can be made periodically or in a lump-sum payment.

Alimony Laws in New York – Understanding the Basics

In New York, spousal support/maintenance is governed by the Domestic Relations Law. The law provides guidelines and factors to consider when awarding spousal support/maintenance. In New York, spousal support/maintenance can be awarded for a fixed period, until the receiving spouse remarries, or until the death of either spouse.

Support is Determined by a Mathematical Calculation

Prior to January 2016, a judge had discretion on whether to order spousal support (maintenance/alimony) and if so, how much would be paid. That power was removed, and now it is based solely on a mathematical calculation on who makes more money.

I should point out that all this math does seem scary, but the courts have given us “cheat sheets.”  Here is a link to the New York Court’s online Support Calculator.

Before we can determine spousal support after divorce,  we must first determine if there will be child support paid. If not, we use one calculation and not another one.

First, we determine who makes more money. All money from all sources is considered. We multiply 30% against the higher earner’s income (called the “payor.”) Then we multiply 20% against the lower earner’s income (called the “payee”). Next, we subtract the payee’s income from the payor’s income. This provides calculation “A”. But we don’t stop there.

Next, we add both incomes together and multiply that sum by 40%.  Then we subtract the payee’s income from that amount. This is calculation “B”.

The lower of Calculation “A” or Calculation “B” will be the amount the payor must pay to the payee.

Example of the Calculations – No Children

EXAMPLE

The wife earns $10,485.11 a month and the husband earns $3750 per month.

Calculation A:

  • 30% * 10,485.11 = $3,145.53                      : We multiply the payor’s income by 30%
  • 20% * 3750 = $750                                      : We multiply the payee’s income by 20%
  • $3,145.53 – $750 = $2,395.53                     : We subtract and get Calculation “A”

Calculation B:

  • $10,485.11 + $3750 = $14,235.11              : We add both incomes
  • 40% * $14,235.11 = $5,694.04                   : We multiply the sum of the incomes by 40%
  • $5,694.04 – $3750 =$1,994.04                    : We subject the payee’s income from that number

Since $1,994.04 is less than $2,395.53, the wife will have to pay to the husband the amount of $1,994.04 per month. We have used the example of the wife as the payor to underscore the point that this statute is gender-neutral. Husbands don’t as a rule pay wives. The rule is that the person with the larger income regardless of sex pays the spouse with the lower income.

Example of the Calculations – With Children

Now, let’s look at what happens when there is child support involved. Click here for an article on Child Support. We’ll now address the situation when the payee spouse is also receiving child support.  In this case, Calculation B remains the same, but Calculation “A” changes. Instead of the payor’s income being multiplied by 30%, it is multiplied only by 20% and we subtract 25% of the lower earner’s income:

Calculation A:

  • $10,485.11 * .20 = $2,097.022
  •  $3,750 * .25 = $937.50
  • $2.097.02 – $937.50 = $1,159.52

In this example, since the wife will be paying child support to the husband, Calculation “A” is now $$1,159.52 and is now lower than Calculation “B”. Therefore, the wife will only have to pay $1,159.52 instead of $1,994.04. In this example, we’ve also had the father as the custodial parent. We did this to point out that mothers do not automatically get the children. Fathers can and do get awarded custody.

Yes, this does look complicated. To be honest, I use a spreadsheet and a calculator to figure this out.

The Length of Spousal Support

Unlike alimony back in Grandma’s time, Spousal Support is not forever. It is only to be paid for a limited time. Once the court determines that support/maintenance will be paid, then it will determine the length of time. The court will apply advisory guidelines on how long the post-divorce maintenance will last.

Between zero and 15 years of marriage:       15% – 30%
Between 15 and 20 years of marriage:          30% – 40%
More than 20 years of marriage:                   35% – 50%

Examples of How Long Support Will be In Place

If the parties were married for 7 years, then the court could order anywhere between one and two years of support. For a couple married 20 years the court could order between six and eight years of support. If the parties were married for more than 20 years, then court could order support to be paid for up to half the time of marriage. For a 40 year marriage, that would be 20 years, for a 25 year marriage that could be 12 1/2 years.

Conclusion

The spousal support/maintenance statute has made the determination of maintenance simpler to predict, but it still came be somewhat complicated to calculate. If you have questions, call Port and Sava at (516) 352-2999 for a free 15 minute telephone consultation.

New Temporary Maintenance Law

Preeti Dawane
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New Temporary Maintenance Law

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dreamstime_m_20628430New Temporary Maintenance (Spousal Support) Law

Starting for all divorces filed on or after October 26, 2015, there is a new law for temporary maintenance (spousal support) in New York. Please note we DO NOT use the term “Alimony” in New York.

For all divorces filed before October 26, 2015, the old temporary maintenance law will still apply.

Here’s the features of the new law:

1. There are two calculations, one for where child support is being paid, and one for where it is not.

2. Who pays and who receives support is NOT determined by sex, but by who makes more money. So, a wife who makes more money will pay support to a husband who does not.

3. The law uses the terms “payee” to describe the person making less money and “payor” to describe the person making more.

4. Income is all money earned. There is an income cap of $175,000. That number will go up every two years beginning in 2016.

5. When the payor spouse DOES NOT have custody and will pay child support we use the following calculation:

(a) the court shall subtract twenty-five percent of the payee’s income from twenty percent of the payor’s income.

(b) the court shall then multiply the sum of the payor’s income and (Including the income cap) and the payee’s income by forty percent.

(c) the court shall subtract the payee’s income from the amount derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.

6. Example: Payor spouse earns $100,000. Payee spouse earns $50,000. Twenty-five percent (25%) of the payee’s income is $12,500. Twenty percent (20%) of $100,000 is $20,000. When we subtract $12,500 from $20,000 we get $7,500 per year or $625 a month. Then we add the two incomes, giving us $150,000. We multiply that by forty percent (40%) and that number is $60,000. The court then subtracts the payee’s income, in this case $50,000 from the $60,000. This gives us $10,000. The temporary maintenance award is the LOWER of the two numbers. In this example, the temporary spousal support is $7,500 per year or $625 per month.

7. If the payor party is not paying child support, then the calculation is different.

(a) the court shall subtract twenty percent of the payee’s income from thirty percent of the payor’s income.

(b) the court shall then multiply the sum of the payor’s income and the payee’s income by forty percent.

(c) the court shall subtract the payee’s income from the amount derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

Clauses (a) and (c) of this subparagraph.

8. Example: Payor spouse earns $100,000. Payee spouse earns $50,000. Twenty percent (20%) of the payee’s income is $10,000. Thirty percent of $100,000 is $30,000. This gives us $20,00 per year or $1,666.67 a month. Then we add the two incomes, giving us $150,000. We multiply that by forty percent (40%) and that number is $60,000. The court then subtracts the payee’s income, in this case $50,000 from the $60,000. This gives us $10,000. The temporary maintenance award is the LOWER of the two numbers. In this example, the numbers are the same, so the temporary maintenance is $20,000 per year.

9. The maintenance calculation is done first. If the payee spouse has the children, then the maintenance is deducted from the payor’s income and added to the payee’s income before the child support calculation is performed.

10. If the payor’s income exceeds the income cap, the court has discretion to consider any income above the cap.

11. Temporary maintenance ends on death of the one of parties or upon divorce.

This is a brand new law and there are bound to be tweaks and changes by judges as new divorces are filed. If you have questions, please email or call us.

Professional Degrees and Licenses are no longer marital property

Gary Port
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Professional Degrees and Licenses are no longer marital property

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For all divorces4i9a7kK6T filed on or after January 25, 2016, licenses, degrees, professional goodwill and other forms of enhanced earnings will no longer be considered marital property. This law does not effect divorces currently pending or divorces filed before January 25, 2016.

The statue is new, and somewhat unclear. While the statue clearly states that licenses degrees, professional goodwill and other forms of enhanced earnings are not subject to equitable distribution, it goes on to state: “HOWEVER, IN ARRIVING AT AN EQUITABLE DIVISION OF MARITAL PROPERTY, THE COURT SHALL CONSIDER THE DIRECT OR INDIRECT CONTRIBUTIONS TO THE DEVELOPMENT DURING THE MARRIAGE OF THE ENHANCED EARNING CAPACITY OF THE OTHER SPOUSE.”

The statute does not explain what a “direct or indirect”contribution is. I suppose if one spouse paid the tuition for the other, that might count as a “direct” contribution. But, “indirect” contribution is unclear. We’ll have to see how the judges interpret this next year.

Service on a missing party by Facebook

Gary Port
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Service on a missing party by Facebook

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In Divorce and Family law cases the statute generally requires that the other party, wife, husband, mother, father, etc, be served in person. That means the divorce papers or family court petition must be placed in the other person’s hands. However, there is a huge problem when you can’t find that other person. Sometimes the person is just ducking or hiding from service. Other times, that person simply cannot be found.

The law does not reward someone who is missing or hiding. In Family Court or Divorce Court you do need the judge’s permission to serve the other people other than in person. This is called substituted service. The Supreme Court allows substituted service along as the served party gets “reasonable notice.”

In a recent Family Court case, Matter of Noel v. Maria, F-00787-13/14B, NYLJ 1202670317766, at *1 (Fam., RI, Decided September 12, 2014)

Read more: In the Matter of a Support Proceeding Noel B Petitioner v Anna-Maria A, Respondent, Support Magistrate Gregory L. Gliedman allowed service on an ex-wife by a notice through Facebook. He found that the petitioner had made exhaustive efforts to find his ex wife to include asking his children. The ex-wife did not update her address information to either the Court or the Support Collection Unit. The court found that the ex-wife was very active on Facebook, and even “liked” a recent post by the petitioner’s new wife. Therefore, he “authorizes substituted service by the following method: the Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address. The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain. The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.”

As Magistrate Gliedman noted, there are no other decisions addressing this issue. Based upon the facts, and the prevalence of social media, this decision is a big boon in serving people who don’t want to be served.

 

Gay and Lesbian Child Custody Pitfalls

Gary Port
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Gay and Lesbian Child Custody Pitfalls

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While the passage of the Marriage Equality Act in New York legalizing gay and lesbian marriages is an important advance in civil rights there are important issues which still need to be resolved. This post will focus on the issue of children and child custody. When the sexual revolution exploded the law struggled with the rights of parents of children born out of wedlock. We now have a dense body of law which addresses these rights of straight parents. Now, we must work on addressing the rights of gay and lesbian parents. The transgendered parents have other issues which will be addressed in another post.

Prior to the sexual revolution, children born out of wedlock were denied numerous rights and the issue of parental rights was generally not addressed. Domestic Relations Law section 24 and Family Court Act section 417 changed all that. A child born before marriage becomes legitimate upon marriage. Further, Family Court Act Article 6 provides that non-married parents have rights to custody and visitation.

With the Marriage Equality Act, a child born to a married gay or lesbian couple could be considered a child of the marriage. Domestic Relations Law section 73 permits a child born to a married woman by means of artificial insemination with the written consent of the mother and her husband to be deemed the legitimate birth child of the woman and husband. In the  decision of Wendy G-M v. Erin G-M a lower court in Monroe County, in a well reasoned decision used this principle to find that the lesbian wife who was the non-biological mother was the legal parent. Note the key here: the child was born through artificial insemination and the parties were married at the time of the birth. The other key note is that this decision is but a single lower court decision in a single county. Other courts and more importantly appellate courts in other departments of the state could disagree. There is a real possibility that another judge in another county could come to the opposite conclusion. Let us not forget that the Republican Party and the Conservative Party recently attacked the Mayor of Seacliff, Bruce Kennedy for performing Same-Sex marriages. 

The presumption of legitimacy does not apply where the child was born before marriage of a same sex couple. Again, for a straight couple, this is not an issue, but is it for a gay or lesbian couple.  The reason is that the Domestic Relations 24 and FCA section 417 creates a presumption that the father is the biological father. However, this is but a presumption and can be rebutted. In the case of a gay or lesbian couple is it self-evident that only one party is the natural parent.

The problem is further complicated by the doctrine of “Equitable Estoppel”. Under this doctrine if a man raises the child as his own, he will be denied the right to deny paternity. The way this normally works is that the father raises the child and finds out several years later that his wife or girlfriend had cheated on him and now he wants to avoid child support. The courts have found this situation createa a non-biological paternity and the court will then require the man to pay child support. Later this doctrine was expanded to allow the father visitation rights.

Under New York law a person who is neither the adoptive parent or the biological parent does normally not have any rights to custody and visitation, absent “extraordinary circumstances””.

The Court of Appeals has expressly rejected the doctrine of Equitable Estoppel for lesbian couples. See Debra H. v. Janice R. 14 NY3rd 576. It can be assumed that the court would also reject this for male homosexual couples as well. In a particularly unjust twist, the Court of Appeals has allowed the finding of paternity for the payment of child support but not for visitation. The Court cited statutory restrictions on its power to allow visitation. So, the non-biological parent has to pay for the child but cannot see the child.

In the case of Jann P v. Jamie R, New York Law Journal July 25, 2014, Family Court Judge Dane faced this frustrating situation. Judge Dane, an outstanding and compassionate Judge, found that the non-biological mother had no custodial rights. It was clear in his decision that he wanted to find to the contrary, but as he stated the statutes and caselaw were against it. In Jann P, the biological mother had the child prior to the marriage. The parties married and signed a separation agreement which provided visitation. After the divorce the biological mother sought to terminate the visitation. Judge Dane explored the law and regretfully concluded that under the current state of the law, the non-biological mother did not have the right of visitation.

To avoid this problem the gay or lesbian couple should not have the child until after marriage. If there is a child born before marriage then all efforts should be made to adopt the child.

Finally, efforts must be made to push the State Government to address this problem and fix the statutes.  In the end, until the statutes are made clear and explicit and above all fair, gay and lesbian parents will continue to suffer in this legal limbo.

Police Pensions and Fire Department Pensions

Gary Port
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Police Pensions and Fire Department Pensions

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In a divorce splitting, the police pension or fire department pension is generally not that difficult. Equitable distribution of pensions is fairly simple under New York, except when the disability pension is involved.

Starting at the beginning, police and fire department pensions are divided just like any other pension.The courts use the Majauskas formula. Under this formula, the marital share of the pension is determined by dividing the number of months of marriage by the number of overlapping months on the job. For example. 10 years of marriage, divided by 20 years of overlapping time on the job, gives us 50%. The spouse will generally get half of that or 25%. Yes, there are exceptions, but those are very case specific.

The NYPD and NYFD Variable Supplemental Fund (VSF) is subject to equitable distribution. Yes, in a divorce the Variable Supplemental Fund is split.

Other departments have accrued sick and vacation pay. This is also split.

Deferred compensation will also be split. The calculation on that is a little complicated. Basically, however, all deferred compensation earned during the marriage will be split.

The tricky part is when the fireman or police officer is injured on the job. Then he or she may be entitled to a disability pension. Depending on how the disability pension is calculated it can either be partially marital property, totally marital property or completely separate property.

In one case, the appellate court explained it this way: “[I]nasmuch as a portion of [a spouse’s] ordinary disability pension represents deferred compensation related to length of employment occurring during the marriage, it constitutes marital property subject to equitable distribution” However, “[t]o the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution” Such is the case with an accident disability pension under the Administrative Code of the City of New York § 13-258 which is based on physical or mental incapacity proximately resulting from city service, not length of service. Berardi v. Berardi, 54 A.D.3d 982, 985 (N.Y. App. Div. 2d Dep’t 2008).

Translating this into English: If the disability pay is based upon time in service or money already put aside in a deferred compensation account, it will be considered marital property and subject to equitable distribution. In this case disability pay can be divided or split in a divorce. However, if the disability is based on compensation for an injury, then it cannot be divided in a divorce. If the amount of money to be received is based upon the extent of the injury, then the disability pay cannot be divided by the court.

NYPD disability retirement is pretty straightforward. The service member receives 75% of his/her base pay. This 75% is not fully marital property. What generally happens is that the judge will find that 50% of the retirement is marital and will divide that. The remaining 25% is treated as separate property not subject to distribution.

Dividing the House – The House Bought After the Marriage, Webcasts Part 1 and 2

Gary Port
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Dividing the House – The House Bought After the Marriage, Webcasts Part 1 and 2

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In this Webcast, Preeti Dawane and Gary Port discuss the division of the house when it is bought after the marriage was performed. The basic rule is that if the house is bought after the marriage, it is marital property, regardless of whose name the deed is in. If the down payment can be traced to separate property, then that money comes back off the top. However, separate property does not mean salary earned during the marriage. Many times the breadwinner will claim that because the down payment came from their salary, that they own the house. This is untrue. All money earned during the marriage is marital money. Therefore, if the money for the down payments was earned during the marriage, then that money is marital property.


In Part 2, Preeti and Gary discuss the equitable distribution of the marital home went it was acquired before the marriage. While the basic rule is that a house acquired before marriage is separate property, the exceptions, as Gary notes, can swallow a whale.

The 10 Critical Factors For The Child Support Income Cap

Gary Port
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The 10 Critical Factors For The Child Support Income Cap

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When the Child Support Income Cap Isn’t the Cap: Understanding Child Support in High-Income Cases

Summary:
The Child Support Income Cap can set the upper limit on a parent’s income for child support. In New York, child support is calculated under the Child Support Standards Act (CSSA), which applies a set percentage to combined parental income—up to a statutory cap. That cap is currently $183,000. But don’t let that number fool you. If one parent makes significantly more than the other, the court may (and often does) go above the cap. This article breaks down the legal rules, the flexibility the courts have, and the real-world factors that influence support awards—especially in high-income cases.

Let’s talk about the child support cap in New York. It’s $183,000 as of now, and yes, it goes up every couple of years, like clockwork. But if you think that number is some kind of ceiling, let me assure you: it’s more of a suggestion.

Child support in New York is governed by the Child Support Standards Act, found in both the Domestic Relations Law and the Family Court Act (specifically FCA § 413). The law sets percentages—17% for one child, 25% for two, and so on—to be applied to the combined parental income, up to the cap. What happens above that number is where things get interesting.

The Big Question: When Do Courts Go Over the Child Support Income Cap?

Let’s say Dad earns $200,000, and Mom earns $70,000. Do we stop at $183,000, or do we keep going?

Technically, the statute lays out ten factors the court should consider before applying child support percentages to income above the Child Support Income Cap. But here’s where it gets tricky. In 1995, the Court of Appeals issued a decision in Cassano v. Cassano that turned the statute on its head. The court said, in plain terms: “We don’t have to use the factors to go above the cap. We can just do it.”

So now, judges have two choices: apply the percentages to all income without further explanation, or explain why they’re going above the cap using the statutory factors. Either approach is legally sound.

I’m not here to argue whether Cassano was rightly decided—that ship has sailed. It’s the law, and unless the Court of Appeals or the Legislature changes it, we live with it. What I can tell you is how this plays out in real life.

Real Numbers, Real Cases

Let me give you a real-world example. I had a client making $1 million a year. His spouse made $35,000. They had three children. She wanted child support calculated on his full income. We offered to apply the percentages to $350,000—well above the $183,000 Child Support Income Cap. That would’ve meant $101,500 a year in tax-free support. Not chump change. She still wanted more. Even the court suggested our offer was more than fair. Eventually, a deal was made—but it took time and plenty of negotiation.

That’s the thing with high-income cases: nobody really believes the court is going to freeze child support at $183,000 if there’s a massive income disparity. And frankly, in settlement talks, we often breach the Child Support Income Cap without blinking. It’s not about what the law says in theory; it’s about what feels equitable in practice.

Let’s Do the Math

Here’s a classic example. Dad makes $100,000. Mom makes $40,000. Two kids. Combined income = $140,000.

Using the cap ($183,000), we’re under it, so we apply 25% to the full $140,000 = $35,000.

Now we apportion that support obligation. Dad earns 71% of the income. So he pays 71% of $35,000 = $24,850.

But what if we used just Dad’s income? 25% of $100,000 = $25,000. Not much difference. But the equation shifts when income increases dramatically.

Courts Can Apply the Cap—But Don’t Count on It

I’ve had cases where the court decided not to go over the cap. One father showed he was involved—picked the kids up, cooked dinner, bought clothes, paid half the extras, took the kids for haircuts (this made a big impression on the judge). The mother, on the other hand, had been taking the tax credit and didn’t show she needed more support. The court held the line and didn’t go above the old cap (it was $130,000 back then).

Contrast that with another case where the father made the same arguments, but didn’t back them up with concrete examples or financial contributions. The court blew past the cap without hesitation.

The lesson? If you’re the non-custodial parent and want to keep support under the cap, you’d better show up—literally and figuratively. Judges want to see involvement, consistency, and fairness.

What It Means for You

If you’re negotiating support or headed to court, know this: the $183,000 cap is not a wall. It’s more like a speed bump. The higher the income disparity, the more likely the court is to apply the full statutory percentages to income well beyond that figure.

But it’s not a guarantee. With the right facts, strong documentation, and a reasonable request, it’s still possible to keep support within limits. As always, the key is preparation—and understanding that the law allows for a wide range of outcomes.

FAQ: High-Income Child Support in New York

What is the current child support cap in New York?
As of now, it’s $183,000. But that number is adjusted every two years.

Can the court go above the cap?
Yes. The court can apply the child support percentages to all income or explain why it’s going over using ten statutory factors. It’s their call.

What are those 10 factors?
They include things like the child’s needs, standard of living, tax consequences, educational costs, and each parent’s financial resources. But courts don’t have to cite them if they choose to apply percentages straight through.

If I make $200,000 and my ex makes $50,000, will the court go over the cap?
Probably. Especially if you’re the non-custodial parent. The larger the gap, the more likely it is.

Can I negotiate a cap above $183,000?
Absolutely. In settlements, we often set a higher cap that still reflects the statutory percentages. That allows for predictability and fairness.

Can a judge decide not to go over the cap?
Yes—but usually only if the non-custodial parent is actively contributing to the kids’ lives and finances in ways beyond just writing a check.

Same Sex Marriage is Now Legal In New York

Gary Port
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Same Sex Marriage is Now Legal In New York

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Governor Cuomo signed into law the marriage equality act. Basically, it means that ” MARRIAGE THAT IS OTHERWISE VALID  SHALL BE VALID REGARDLESS OF WHETHER THE PARTIES TO THE MARRIAGE ARE OF  THE SAME OR DIFFERENT SEX.”

Furthermore,

“NO GOVERNMENT TREATMENT OR LEGAL STATUS, EFFECT, RIGHT, BENEFIT,  PRIVILEGE, PROTECTION OR RESPONSIBILITY RELATING TO MARRIAGE, WHETHER  DERIVING FROM STATUTE, ADMINISTRATIVE OR COURT RULE, PUBLIC POLICY, COMMON LAW OR ANY OTHER SOURCE OF LAW, SHALL DIFFER BASED ON THE PARTIES TO THE MARRIAGE BEING OR HAVING BEEN OF THE SAME SEX RATHER THAN A  DIFFERENT SEX. WHEN NECESSARY TO IMPLEMENT THE RIGHTS AND RESPONSIBILITIES OF SPOUSES UNDER THE LAW, ALL GENDER-SPECIFIC LANGUAGE OR TERMS SHALL BE CONSTRUED IN A GENDER-NEUTRAL MANNER IN ALL SUCH SOURCES OF  LAW.”

However, no clergymen can be forced to perform a same-sex marriage. So, if a particular religion is against homosexual marriage, then that religion cannot be forced into performing one.

There is an important note of caution. This law only effects state law and benefits. Under the federal Defense of Marriage Act (DOMA) marriage is still only recognized as between a man and a woman.  However, in 2013 the Supreme Court has ruled that DOMA is unconstitutional. In the long run, this means that homosexual spouses will be accorded the same rights as heterosexual spouses. The federal rules on this are currently be re-written. Expect some hangups and snags along the way for the next couple of years.

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