Husband Unsuccessful in Setting Aside Child Support Provisions in Divorce Agreement

April 17, 2014 By

father's rights attorneysA husband brought an application to rescind and declare null and void the portions of a parties’ settlement agreement which dealt with child support. He claimed the amount of child support in the settlement agreement was unsustainable and overreaching. The wife in this case brought a cross application to declare that the agreement was enforceable.

Judge Lawrence Ecker sitting in the Supreme Court Divorce Part in Westchester County stated in his decision the agreement was negotiated over a period of years. There was a mediation concerning issues involving custody, child support, equitable distribution, and spousal maintenance.

Capping Child Support Payments

The husband presented arguments that he was not properly advised that a court could cap child support payments. The attorneys for the wife claimed the husband did not properly assert allegations of fraud or duress in his motion to set aside the settlement agreement and therefore he was actually arguing that he was misled by the mediator and his attorney.

Husband Participated in Negotiations

The court took into consideration the husband was a smart businessman and a financial expert. Judge Ecker found the husband participated in the negotiation of the settlement agreement. The husband’s emails were presented in support of these allegations.

Judge Ecker also noted in his decision there was no obligation for a judge to cap the combined parental income at $136,000 or any other specific amount. The court in its decision found the husband had obtained competent counsel. His attorney had actively participated in negotiations with regard to the settlement agreement. The husband had voluntarily entered into the agreement and the agreement was valid and enforceable. The court rejected the husband’s claim in its entirety. The court held the wife had established she was entitled to a judgment of divorce, the stipulation of settlement was valid and enforceable and therefore granted her summary judgment motion for a divorce.

father's rights advocateConclusion

The husband made a good try at setting aside the agreement but unfortunately his argument was weak and not substantiated by statutes or caselaw.

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Court Rejects Business Expenses Allegedly Incurred by Husband

March 27, 2014 By

father's rights attorneysJustice Duffy sitting in a Supreme Court Part in Westchester County recently ruled a man had to pay his ex-wife more than $282,000 in back child support and spousal maintenance payments. Judge Duffy determined the man had improperly taken personal expenditures including, but not limited to, a mountain climbing trip to Mount Everest as a business expense. Judge Duffy ruled the man had been artificially reducing his income from the years 2007 to 2012 to avoid paying the appropriate amount of child support and spousal maintenance to his ex-wife.

The expenses written off by the man included a 2010 three week trip to train to climb Mount Everest. The man had claimed this was related to his work concerning marketing mountain climbing gear. The judge found the husband’s explanation for the trip to be “not plausible.” She took into consideration, with regard to his writing off this trip, he was the only shareholder, only board member, and only officer of the company, which he created in 2007, that wrote off the expenses. Judge Duffy also found the husband had written off expenses related to a trip to Israel in 2007. This trip coincided with his son’s Bar Mitzvah in Israel. The man claimed during the trip to Israel he had met with representatives of an Israeli clothing company.

Corporate Funds Used to Pay Husband’s Lawyers’ Fees

The man had admitted to the use of corporate funds to pay his lawyer’s fees to litigate this post divorce legal action. The husband testified the entire amount of his lawyer’s fees in the case, which was $20,000, was paid for by corporate funds.

Husband Must Pay Child Support and Spousal Maintenance

Judge Duffy held the ex-wife was correct in alleging her former husband must pay child support and spousal maintenance payments pursuant to the divorce formula in her 2005 divorce agreement which included the expenses the husband wrote off.

The man tried to receive a credit of $7,000 he paid from corporate funds in 2010 to his sons who were aged, at that time, 19, 15, and 10. He claimed those funds were related to business related positions maintained by his children. With regard to this issue, Judge Duffy held “a non-custodial parent is not entitled to offset any voluntary payments made for the benefit of the children against the support he is required to pay to the custodial parent.”

Conclusion

protecting fathersBusiness expenses should be real business expenses and not be created to hide income thereby reducing a party’s support obligations.

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Present Income Rule Applied Regarding Spousal Maintenance Payments

January 21, 2014 By

father's rights attorneyIn a case of first impression, Justice Lawrence Ecker sitting in the Supreme Court Matrimonial Part in Westchester County dealt with the issue as to whether the present income rule which is applicable in child support proceedings, can be utilized in determining the amount of spousal maintenance due from one party to a marriage to the other. In this case, the wife sought temporary spousal maintenance from the husband in the amount of $17,000 per month. Justice Ecker took note the husband’s 2012 tax return showed income of $820,000. However, he obtained a new position in 2013 because he lost his prior job through no fault of his own. His new job paid him approximately one-third of the wages he earned from his previous employment. The question presented to the court was whether it should utilize the income the husband received on his 2012 tax return, or use his present income in 2013 to determine the amount of his financial obligation for spousal maintenance to his wife.

Justice Ecker analyzed the situation in the context of a child support proceeding. The present income rule is appropriate to determine child support payments. Justice Ecker reached the conclusion he could utilize the present income standard for child support payments to determine the husband’s obligation for spousal maintenance (alimony). Utilizing this theory, he found the husband’s income in 2013 would be $250,000. The wife received no income during that year. He therefore concluded that the husband should pay the wife spousal maintenance of $5,737 and not the $17,000 she was requesting.

Conclusion

This is a huge victory for fathers. In the past, fathers were punished for being successful. The theory that no good deed goes unpunished was applicable to spousal maintenance awards. Fathers who had had high paying jobs and were then downsized were forced to pay spousal maintenance based on what they used to earn, not what they currently earned. This decision is a great step forward by this court in arriving at a fair and reasonable amount of spousal maintenance to be paid by the father in this case.

helping husbandsElliot Schlissel is a father’s rights lawyer, representing fathers on child support and spousal maintenance cases.

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Father Entitled to Credit for Overpayments of Child Support

January 9, 2014 By

father's rights attorneyThe general rule concerning child support payments, in New York State, is if you overpay your child support, you are not entitled to a refund or credit for the overpayments. However, if you underpay your child support, legal action can be taken against you to force you to pay the correct amount of child support. In a recent case, a father over paid child support by $29,000. This was due to an error made by a support magistrate. In this case, even though there is a public policy in New York that prevents restitution of overpayments in child support cases, an upstate appeals court has made a ruling giving the father credit for the $29,000 in overpayments in child support.

Appeals Court Gives Father a $29,000 Credit

The case took place in Albany County. Judge W. Dennis Duggan had increased the man’s child support payments by $1,000 per month. An appeals court reversed the judge’s ruling. The appeals court stated it would be unjust to deny the father a credit for the overpayment.

Judge Duggan stated that if the father had underpaid child support he would have had to have made up the difference. Judge Duggan went on to state “the law can not contenance a situation where the father is liable for up to $29,000 in excess child support when Family Court gets it wrong but he would get a credit for up to $29,000 when Family Court gets it right.”

The original child support payment was $1500 per month pursuant to a judgment of divorce. A support magistrate had granted an order raising it to $2500 per month based on a change in circumstances. The appellate court reversed the support magistrate’s ruling.

Conclusion

Denying a father the appropriate credit for overpayments punishes the father for following a court order that is later reversed. This would be fundamentally unfair. Fathers should be entitled to credits for overpayments of child support. These credits should be utilized with regard to future child support payments the father is obligated to make.

help in handling child support issues Elliot S. Schlissel is a father’s rights attorney who has represented fathers throughout the Metropolitan New York area for more than 45 years in divorce cases and Family Court proceedings.

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Disabled Father Gets Child Support Arrears Reduced

January 7, 2014 By

father's rights attorneysSection 451 of the New York Family Court Act states arrears on child support will only be modified from the date the petition to reduce them is filed. This means in the event you have a heart attack and/or are sick in the hospital for six months, and thereafter you file a downward modification for child support, you only get the downward modification from the date you filed the petition, not as of the time six months ago when you were hospitalized with a heart attack. This makes no sense!

A lawsuit was brought on behalf of a father to cap his child support arrears at $500. The father had suffered a heart attack. He was rendered disabled. He couldn’t work. Eventually his income fell below the poverty level. It took him months to become healthy enough to file a petition in the Family Court for the reduction of his child support arrears. Upon taking this action, the Family Court denied his application and said pay up.

Appeal to the Appellate Division

An appeal was brought to the Appellate Division of the Second Department (an appeals court). The Appellate Division held since the petitioner was impoverished before petitioning for relief “the prohibition against reduction of accrued arrears contained in Family Court Act section 451 is not triggered because there was no accrued arrears in excess of $500 to reduce.”

This decision helped establish that disabled parents who cannot work, and cannot initially petition for the reduction of their child support obligations are still entitled to the reduction as of the date of their disability, not the date they bring the petition. Child support payments should not be allowed to have an unfair impact on disabled and/or indigent parents.

child support assistance for fathersThe writer has been helping fathers with child support problems for more than 45 years.

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