The Supreme and Family Court both have jurisdiction over issues of child support, maintenance and domestic violence. However, once a divorce action is commenced in Supreme Court, a subsequent action for custody or support cannot be brought in Family Court while the divorce action is pending in Supreme Court.

4. Referral Jurisdiction

If a divorce action is commenced in Supreme Court after the commencement of a support proceeding in Family Court, the Supreme Court has the power to remove the prior Family Court proceeding to Supreme Court.

The Supreme Court may refer an issue of support or may exercise its jurisdiction over support even where the Family Court has previously issued an Order. In such a situation, the Family Court's Order terminates when the Supreme Court makes an order of support, unless the Supreme Court decides to continue the Family Court's order.

5. Integrated Domestic Violence Court ("IDVC")

This court is designed to allow one judge (in Westchester, Hon. Daniel Angiolillo) to hear all the legal issues, criminal - family court - matrimonial, that may arise when domestic violence occurs.

When a criminal case is pending in the Domestic Violence part of Supreme Court, the justice presiding in that part will transfer designated Family Court cases to the IDVC. The integrated court will handle petitions for: custody, visitation, paternity and family offenses. The court will also assume jurisdiction over a petition for support; although the support issue will still be heard initially by a Hearing Examiner. Any objections to the Hearing Examiner's determination will be filed with and determined by the justice presiding in the IDVC.

While the Family Court petition is pending in the IDVC, all inquiries or other communications regarding the petition should be directed to the staff of the IDVC. The staff may be reached by mail addressed to: IDVC Courtroom 1402, Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Blvd., White Plains, New York 10601; or by telephone to the following individuals: Ms. Jacky Green, Senior Court Office Assistant at 995-6531; Ms. Selene Jackson, Senior Court Clerk at 995-7416; Mr. Robert Nicolais, Esq., Project Director at 995-6038 and Ms. Cherron Condon, Case Manager at 995-3292.

C. TEMPORARY ("PENDENTE LITE") RELIEF: WHAT TO ASK FOR

A. Maintenance

B. Child Support

C. Custody

D. Law Guardian

E. Restraint of Assets

F. Exclusive Use and Occupancy

G. Experts' Fees

H. Attorneys' Fees

I. Retroactive to Date of Application

J. Credits

K. Effect of Denial of Relief

I. When To Make a Pendente Lite Motion

A. Before making a pendente lite motion, counsel needs a completed, thorough and accurate Statement of Net Worth and should consider the following:

· the parties' financial status quo

· is the motion necessary to maintain the financial status quo

· could relief be agreed to by stipulation and/or at a preliminary conference

· will a letter to opposing counsel proposing interim support be effective

· will negotiations on interim support take more time than a pendente lite motion

· is the financial cost of the motion justified

· what is the likelihood of success on the merits

· will the motion help or hurt the resolution of the matrimonial action

· can the action be resolved quickly.

B. You must make a pendente lite motion if:

· you need an immediate temporary order of protection

· the payor spouse refuses to maintain the financial status quo or discontinues life and/or medical insurance

· your client wants temporary support to be effective as early as possible (i.e., temporary support orders are retroactive to the date of application)

· future events may be less favorable to your client's position (e.g., payor spouse's employment contract terminates in six months)

· there is an emergency (e.g., need to restrain the transfer or dissipation of assets; car lease terminates; trip to Israel with the children; roof needs repair; child needs tuition)

II. YOU'VE GOT TO HAVE FAULT (or An "Opting-Out Agreement")

In New York, the only manner in which a spouse can obtain a divorce without proving fault against the other spouse is by living separate and apart for one year pursuant to a written agreement of separation (a/k/a "opting-out agreement," "stipulation of settlement," "separation agreement"). However, once the parties have entered into a written Separation Agreement, it is common to obtain an immediate uncontested default divorce on an agreed-upon fault ground, such as constructive abandonment.

Domestic Relations Law of the State of New York (McKinneys) (hereinafter "DRL"), § 170(1)-(6) lists the following grounds for divorce:

(1) cruel and inhuman treatment (more than mere incompatibility; must be serious misconduct, Hessen v. Hessen, 33 N.Y.2d 406 (1974); Brady v. Brady, 64 N.Y.2d 339 (1985)); also, 5-year Statute of Limitations;

(2) abandonment for more than one year (constructive abandonment is probably the most often used ground for an uncontested default divorce if the parties do not want to wait for one year after their written agreement is signed to obtain a divorce);

(3) prison for three or more consecutive years;

(4) adultery;

(5) decree or judgment of separation (rare); and

(6) written separation agreement (very common).

A jury trial is permitted to contest grounds for divorce.

III. CHILD SUPPORT

1) Child Support Standards Act ("CSSA")

Domestic Relations Law ("DRL") §240- 1-b

Family Court Act ("FCA") §413

A. Standard and Factors for Determining the Amount of Child Support

1. Basic Child Support

Under New York's Child Support Standards Act (CSSA), a court must always determine the basic child support obligation, even if the court ultimately deviates from this amount in formulating the final child support award. A court may deviate from this basic child support obligation only under extraordinary circumstances, as described in the statute.

Child Support percentages:

17% for one child

25% for two children

29% for three children

31% for four children

no less than 35% for five or more children.

In Cody III v. Evans-Cody, 435 N.Y.S.2d 1181 (2d Dep't 2001), the mother left her three children and husband to become a "wrangler" at a ranch in Arizona, spending part of her $130,000 inheritance (i.e., separate property) on a $19,000 Jeep and a $15,000 mortgage. The father earned $40,000 and the mother earned $21,455 per year. The Second Department increased the mother's child support obligation from $484.37 to $900 per month, reasoning that it is proper to consider her inheritance in computing child support.

2. Mandatory Add-Ons

§ Pro rata share of reasonable child care expenses while the custodial parent is working, attending school, job training. Summer camp should be specified in lieu of childcare.

§ Pro rata share of reasonable health care expenses that are not covered by health insurance (i.e., "unreimbursed medical insurance").

§ In Gentner v. Gentner, 736 N.Y.S.2d 431 (3^rd Dept. 2001), the Appellate Division ruled that the trial court did not err when it failed to apportion add-on expenses in proportion to the parties’ income. The Court held that a pro rata sharing of uninsured/unreimbursed medical expenses and childcare expenses is appropriate only when the non-custodial parent’s basic child support obligation has been calculated pursuant to the CSSA, and not when the court decides that the formula is unjust or inappropriate and sets child support under DRL §240 (1-b)(g). (See paragraph 4 below)

3. Discretionary Add-Ons

§ Childcare expenses while the custodial parent is looking for work.

§ Child's educational costs, such as private school or college tuition.

§ Child's educational enrichment costs, such as tutoring.

§ UNCLEAR: If Court can direct the non-custodial parent to pay child's extracurricular expenses, such as piano lessons, horseback-riding lessons

4. Deviations from the basic child support obligation

Factors to be considered to determine if the non-custodial parent's pro rata share of basic child support would be "unjust or inappropriate."

· Financial resources of both parents and the child

· Physical/emotional health of the child; any special needs or aptitudes

· Standard of living the child would have enjoyed had the household not dissolved

· Tax consequences to the parties

· Non-monetary contribution of the parents toward the care of the child

· Educational needs of either parent

· Substantial differences in gross incomes of the parents

· Needs of other children under the care of the non-custodial parent (but only if the financial resources of those children are less then the child requesting support)

· Extraordinary expenses of the non-custodial parent in making visitations, or expenses of non-custodial parent in extended visitations (but only if the extended visitations substantially reduce the custodial parent's expenses)

· Any other factor which the court deems relevant.

5. Health Insurance

6. Life Insurance

7. College Expenses

A court may, as part of an award of child support, require a non-custodial parent to contribute his share of the cost of a college education (see, DRL § 240 [1-b] [b] [2]; FCA § 413 [1] [c] [7]).

In the First, Third and Fourth Departments, the application of a credit for college expenses is discretionary and generally limited to the cost of room and board (see, Finkelstein v. Finkelstein, 268 A.D.2d 273, 275 [1st Dep't 2000]; Paro v. Paro, 215 A.D.2d 965, 966 [3d Dep't 1995]; Houck v. Houck, 246 A.D.2d 905, 906 [3d Dep't 1988]; Burns v. Burns, 233 A.D.2d 852, 853 [4th Dep't 1996]). On a case-by-case basis, where appropriate, trial courts in these departments may order a reduction in basic child support commensurate with the non-custodial parent's pro rata share of the costs of food and lodging at college.

However, in the Second Department, the rule is that the trial court is to give the non-custodial parent a credit against child support for any amounts he or she contributes toward college expenses when the child lives away from home while attending college. In Sheridan v. Sperber, 269 A.D.2d 432, 702 N.Y.S.2d 894 (2d Dep't 2000), the court left no room for doubt that the "college credit" is both mandatory and coextensive with the non-custodial parent's contribution to any college expenses, including tuition. See also, Jablonski v. Jablonski, 25 A.D.2d 692 [2000]; Justino v. Justino, 238 A.D.2d 549 [1997]; Vainchenker v. Vainchenker, 242 A.D.2d 620 [1997]).

The dollar-for-dollar mandatory credit for college expenses does not apply where there is an agreement between the parents that does not provide for the downward modification of child support if the non-custodial parent contributes to college expenses. Thus, the court in Maurer v. Erdheim, 738 N.Y.S.2d 885 (2d Dep't 2002) held that the non-custodial parent does not get a credit against child support for his contribution toward college expenses because the Stipulation of Settlement did not provide for it.

8. WHO IS REQUIRED TO PAY CHILD SUPPORT

A. Sole Custody or Joint Legal Custody and the children reside with the Custodial Parent

In most instances, the custodial parent (i.e., the parent with whom the children live) receives child support.

B. Joint Physical Custody

In Baraby v. Baraby, 250 A.D.2d 201; 681 N.Y.S.2d 826 (3d Dep’t 1998) the court explained how to calculate child support in equal share physical custody situations. As indicated on page 827 of the case, the court held that:

where, as here, the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the "noncustodial" parent for the purpose of support regardless of the labels employed by the parties [citations omitted]. That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless "statutory formula yields a result that is unjust or inappropriate".

C. Split Custody

Courts have determined each parent's basic child support obligation and subtracted the lower from the higher child support obligation.

9. Duration of Child Support

1. Parents are required to support their child until the child has reached the age of 21, or has become emancipated.

2. Emancipation may include any event that indicates that the child is living separately and independently from a parent, or is self-supporting, for example:

a. Completion of four years of college

b. Child's marriage

c. Permanent residence away from either parent (excluding residence at school)

d. Child's enrollment in the armed forces of the United States

e. Child's full-time employment (excluding employment during vacation and summer periods).

10. Enforcement

1. Attorneys' Income Execution - CPLR § 5241

2. Income Deduction Order by Court - CPLR § 5242

3. Support Collection Unit (only when order is combined with child support) - FCA § 440(b)(1)

4. Suspension of driving privileges, state professional, occupational, business and recreation licenses - DRL § 244-a, 244-b, 244-d.

11. Modification of Child Support - Change of Circumstances

Custody and support provisions can be annulled, modified, or amended on notice motion. DRL §240. The child is not bound by the terms of the parents' Separation Agreement. The court must take into account the child's best interests; the assets, earnings, and liabilities of the noncustodial parent; and the financial condition of the custodial parent.

A. Test - Change of Circumstances

A child has a right to receive adequate support. When a request for increased support is based on the fact that the support is inadequate (i.e., the child's needs have increased), modification will be made upon a showing (i) of a change of circumstances warranting the increase, and (ii) that the modification is in the best interests of the child. Factors that are insufficient by themselves to warrant a modification, but are considered by the court in determining adequacy of support and the best interests of the child are:

(i) Increased needs of the child due to special circumstances or additional activities;

(ii) Increased cost of living;

(iii) Loss of income or assets by a parent or a substantial improvement in financial condition of a parent; and

(iv) Current and prior lifestyle of the child.

[Brescia v. Fitts, 56 N.Y.2d 132 (1982); Michaels v. Michaels, 56 N.Y.2d 924 (1982)]

B. Modification When Support Adequate

- Unforeseen Changes

When modification of support is sought for reasons other than that it is inadequate to meet the child's needs (i.e., to redistribute burden between parents), the party seeking the change must demonstrate that there are unforeseen and unreasonable changes in circumstances warranting the modification. Boden v. Boden, 42 N.Y.2d 210 (1977); Brescia v. Fitts, supra.

C. Arrears Cannot Be Modified

By statute, arrears for child support cannot be reduced or canceled, even if they have not been reduced to a money judgment. Note: The court may reduce or annual arrears of maintenance that have not been reduced to final judgment.

IV. MAINTENANCE (a/k/a alimony or spousal support)

Absent an agreement between the parties, the court may order temporary maintenance or maintenance to meet the reasonable needs of a party as determined by the parties' pre-separation standard of living. [DRL §236B(6)].

A. Factors Considered

Factors that must be considered in determining the amount and duration of maintenance include the following:

(i) Income and property of respective parties after distribution of marital property, and tax consequences of award;

(ii) Duration of the marriage;

(iii) Health and age of the parties;

(iv) Capacities for self-support, and time and training required to become self-supporting;

(v) Custody of children;

(vi) Tax consequences to each party;

(vii) Contributions as a spouse, parent, wage earner, and homemaker; and to the career of the spouse by the potential maintenance recipient;

(viii) The wasteful dissipation of marital assets by either spouse, or any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(ix) Present and future earning capacities of both parties;

(x) Lost lifetime earning capacity as a result of foregoing or delaying education, training, employment, or career opportunities during marriage; and

(xi) Any other factor that the court expressly finds just and proper.

V. EQUITABLE DISTRIBUTION (DRL § 236B)

A. Separate Property includes:

1) Property acquired before marriage;

2) Property acquired by bequest, devise, descent, or gift from a nonspouse;

3) Compensation for personal injuries;

4) Property acquired in exchange for or by increase in value of separate property (less contributions by other spouse); and

5) Property described as separate by written agreement of the parties.

B. Marital Property is all property (except for Separate Property) acquired by the parties after the date of the marriage and before the commencement of the divorce action.

Marital Property includes:

1) Enhanced Earning Capacity from Academic Degrees or Professional Licenses. O'Brien v. O'Brien, 66 N.Y.2d 576 (1985) (medical degree); McSparron v. McSparron, 87 N.Y.2d 275 (1995) (masters degree);

2) Pensions (Majaukas v. Majaukas, 61 N.Y.2d 481 (1984));

3) Gifts between or to both spouses (Ackley v. Ackley, 100 A.D.2d 153 (1984));

4) Commingled Separate Property where Party asserting Separate Property cannot meet burden of tracing asset to Separate Property;

5) Active appreciation of Separate Property is subject to equitable distribution; passive appreciation is not.

C. Factors In Determining Spouse's "Equitable" Distribution

1. Statutory

RULE: The court in deciding equitable distribution must set forth the factors it considered in its decision and such requirement may not be waived by either party or counsel. (DRL §236(B)(5)(g)). The court must set forth these factors in a clear and comprehensive manner. Dunne v. Dunne, 172 A.D.2d 482, 567 N.Y.S.2d 838 (2d Dep’t 1991).

1. The specific factors found in DRL §236 (B) (5) (d) are as follows:

(1) The income and property of each party at the time of the marriage and at the time of the commencement of the action.

(i) An unequal award of equitable distribution was justified in view of the parties' respective financial circumstances, including the husband's substantial separate property assets. Glasberg v. Glasberg, 162 A.D.2d 586, 556 N.Y.S.2d 772 (2d Dep’t 1990).<