You've been served - now what?
by Christina Randazzo, Esq.
So you've been served with a Summons for divorce or a Petition in Family Court in New York State - what should you do now? Call an attorney.
I know that answer seems a bit self-serving coming from a family law lawyer, but it is truly the smartest thing you can do for yourself right now. You may think you can't afford an attorney or you may think talking to an attorney will only complicate the situation, but it doesn't hurt to at least have a consultation with an attorney experienced in divorce or family law so that you know the proper way to proceed. Then you can make an informed decision about whether to hire counsel or go it alone. The worst options are to ignore the situation, assume you and the petitioner/plaintiff will be able to work it out, or assume the judge will be on your side once she/he hears your story. The consequences can be catastrophic.
Every attorney I know who practices in this area has received a call from someone desperately seeking advice because the person just appeared in court and isn't sure what just happened, or because they signed an agreement or consented to an order, didn't fully understand it, and now regret it. It is almost always more expensive and time consuming (and not always possible) to try to put right these situations than it is to have an attorney guiding you from the outset. Don't do that to yourself - at the very least, speak to an experienced attorney as soon as you are served and let yourself be informed about what will be involved.
If you are served with a Summons and Complaint in a New York Supreme Court for a divorce, you typically have 20 days (but sometimes longer) to respond by filing an Answer. Failing to respond timely can result in a default judgment against you, meaning you may lose your right to defend yourself in the action or to put forth your own claims.
If you are served with a Petition in a New York Family Court, typically you will be given a court date on which to appear. A Petition in Family Court may relate to custody of a child, child support, spousal maintenance, or even a restraining order. Failure to appear can result in a default judgment against you, meaning you might be handing a victory to the petitioner regarding whatever relief he/she is seeking against you at great consequence to you. If it is impossible for you to appear on the court date you are given for good reason, it is possible to ask for another date and the court will usually accommodate your request. Don't assume you have no options.
If you've been served, call me. I will go over your situation with you and give you an idea of what to expect so that you can avoid costly mistakes. Click here to contact me.
by Christina Randazzo, Esq.
In 2015, the laws governing maintenance (also known as "alimony" or "spousal support") in New York State were completely overhauled. The laws applicable to temporary maintenance, or maintenance paid while a divorce is being litigated through the courts, went into effect on October 25, 2015. The new provisions regarding temporary maintenance will only impact divorce cases filed after the October 25, 2015 effective date. The laws applicable to maintenance paid after a divorce is final (post-divorce or permanent maintenance) went into effect on January 25, 2016 and will only apply to divorce cases commencing after that date.
Modifications Based on the New Statute
If you receive or pay temporary maintenance pursuant to an order made by the court prior to October 25, 2015, the new statute is not grounds to modify your existing order. Further, if your divorce is already final and you are paying or receiving maintenance pursuant to your Judgment of Divorce, the passage of this new statute does not provide a basis for modification. In other words, you cannot seek to change a maintenance order you already have simply because the new statute would be more favorable to you. It is also important to note that if you have an existing maintenance order, the new statute does not change an obligation to pay in any way.
How much maintenance will I get/have to pay?
The new statute provides two formulas for calculating temporary and post-divorce maintenance based upon whether the payor is also paying child support to his/her spouse. In setting a maintenance award, the court will use the appropriate formula and plug in the payor's income and the payee's income to calculate the guidelines maintenance award. Under the old statute, a formula was given for calculating temporary maintenance, but there was no formula for calculating post-divorce maintenance leaving much uncertainty. Under the old statute, there was also only one formula regardless of whether the payor was also paying child support to his/her spouse.
Income Cap and Deviations
The new statute lowers the income cap for temporary maintenance from $543,000.00 to $175,000.00 of the payor’s income, which in 2016 was increased to $178,000.00. The $178,000.00 income cap also applies to post-divorce maintenance. This means that in determining a maintenance award, the court will apply the formula only to the first $178,000.00 of the payor’s income. If the payor has income above the $178,000.00 cap, payment of additional maintenance based upon the surplus income is at the discretion of the court guided by “deviation factors” set forth in the statute. There are thirteen factors which the court is obliged to consider before deviating in setting temporary maintenance, and fifteen deviation factors to consider before setting post-divorce maintenance.
The formulas contained in the statute will always determine the amount of maintenance to be paid, unless the court determines that the formulas result in an “unjust or inappropriate” outcome. The court can make that determination and choose to set a different amount as the maintenance obligation, but before doing so the court must consider the deviation factors set forth in the statute.
How long will maintenance be paid?
Temporary maintenance will always last until your divorce action has concluded, unless it is otherwise modified by agreement or by the court. As to how long post-divorce maintenance may last, the new statute sets forth a duration schedule based upon the length of your marriage. However, the duration schedule is advisory only and the court may choose not to follow it. It remains to be seen how closely the courts will be guided by the advisory duration schedule set forth in the new statute.
While the new statute is intended to reduce unpredictability in maintenance outcomes, it does not completely remove the element of uncertainty. A court can choose to deviate from the guidelines and there are no guarantees as to how long post-divorce maintenance may last. It is therefore essential that you have an attorney fully familiar with the prior and current maintenance laws who can assist you to achieve a fair result if maintenance is an issue in your case.
Regardless of whether the new maintenance statute applies to your case or whether you are subject to the prior law, you always have the option to take control of your case and deviate from the law by coming to an agreement with your spouse as to whether maintenance will be paid, how much, and for how long. If a fair and reasonable agreement can be reached, that will remove the element of unpredictability and is always preferable to leaving your financial well-being to the courts to decide.
In cases where maintenance is an issue, my focus is on resolving this element of your case as quickly as possible. Addressing maintenance quickly will ensure the financial stability of the family while a divorce is ongoing and give you some clarity as to your financial position going forward as you disentangle your economic ties to your ex-spouse. If you think you may have to pay maintenance, you will want to know the amount and duration so that you can plan for your future accordingly. If you expect to receive maintenance, you will need this element of your case resolved quickly so that you can budget and make definitive plans for the next phase of your life.
You also will need questions answered such as who will be responsible for paying the mortgage on your marital home while a divorce is ongoing and how might maintenance impact child support. An experienced attorney is imperative to getting these questions answered for you by either negotiating with your ex-spouse or navigating the court system.
Contact me to further discuss maintenance and how the new statute will impact your case.
To further discuss your family law situation, call Christina at
845-386-0093 or click here to send an email.
The content of this blog is not, nor is it meant to be, legal advice. Consult an attorney about your unique situation before proceeding in your legal matter.