Venzon Law Firm PC - Buffalo, New York

Yes, the Court can impute a dollar amount income based upon the parent's former resources. In other words, the Court can compute income as if the parent was working at the same job.

2. Can a Court, in the exercise of its discretion, attribute or impute income to either parent from any resources that may be available to the parent?

Yes, a Court can attribute or impute income to either parent from any resources that may be available to the parent. These may include but are not limited to:

non-income producing assets;

meals, lodging, memberships, cars or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use or which expenditures directly or indirectly confer personal economic benefits;

fringe benefits as part of compensation for employment;

money, goods or services provided by relatives and friends.

3. May a Court attribute or impute income to a parent from non-income producing assets?

Yes, and this is wide ranging and could include anything from a license to practice medicine, a piece of artwork, or a coin collection (passive appreciation).

4. Basic Child Support Obligation -- What is this?

The "basic child support obligation" is defined in Domestic Relations Law Section 240 (1-b)(b)(1) to mean "the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except an increased pursuant to subparagraphs 4, 5, 6 and 7 of such paragraph." A less technical explanation is that basic child support is a percentage of your gross income minus certain deductions, such as for FICA, but not federal or state taxes, or even monthly living expenses.

5. What is the age at which child support ceases?

The age at which child support ceases is 21, although this differs in custody and visitation issues where the age of majority is 18. But, for purposes of the parental support duty, the age of majority remains at 21.

A Court may in its discretion deviate from the basic child support obligation if the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate. Factors a Court may consider in deviating from the basic child support obligation are:

the financial resources of the custodial and non-custodial parent and those of the child;

the physical and emotional health of the child and his/her special needs and aptitudes;

the standard of living the child would have enjoyed had the marriage and household not been dissolved;

the tax consequences of the parties; the non-monetary contributions made by the parents toward the care and well-being of the child;

the educational needs of either parent;

a determination that there exists comparative financial circumstances between the parents which reflects a wide disparity in gross income between the spouses;

the needs of the children of the non-custodial parent for whom the non-custodial parent is providing support other than the child of the instant action and whose support has not been deducted from income and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support the children are less than the resources available to support the children not subject to the instant action;

provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof; and

any other factors the court determines relevant in each case.

6. What are the child support percentages?

Once arriving at the combined parental income, the sum calculated is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:

17% of the combined parental income for one child;

25% of the combined parental income for two children;

29% of the combined parental income for three children;

31% of the combined parental income for four children;

no more than 35% of the combined parental income for five or more children.

7. How is the basic child support obligation applied?

Example: In calculating an award in a case where the non-custodial parent has an annual income of $30,000.00, the custodial parent has an annual income of $10,000.00 and there are two children, the formula works as follows:

Non-custodial parent: $30,000.00
Custodial parent: $10,000.00
Combined income: $40,000.00
Percentage: 25% of $40,000.00
Basic Obligation: $10,000.00
Payment Ordered: $7,500.00/year (or $625.00/mo)

Since the non-custodial parent's pro rata share of the combined income is 3/4 ($30,000/$40,000), he or she will be ordered to pay 3/4 of the basic obligation, or $7,500.00 per year.

An example for custodial parental income over $80,000.00:

Non-custodial parent: $75,000.00
Custodial parent: $25,000.00
Combined income: $100,000.00
Percentage: 25% of first $80,000.00

The Court may decide to apply the formula to the additional $20,000.00 of income or, based on the factors, may provide for more or less than 25% of the additional income.
Basic Obligation $25,000.00 ($20,000.00 + $5,000.00, if formula is applied to the amount above $80,000.00)
Payment Ordered: $18,750.00/year (or $1,562.50/mo)

Since the non-custodial parent's pro rata share of the combined income is 3/4 $75,000/$100,000), he or she will be ordered to pay 3/4 of the basic obligation, or $18,750/year if the court applies the formula to the total combined income of $100,000.00. Application of the factors to the income over $80,000.00 could cause the figure to increase or decrease.

8. What is the gross income for purposes of calculating child support?

Gross income means all income from whatever source derived, including but not limited to:

Compensation for services, including fees, commissions, fringe benefits and similar items;

gross income derived from business;

gains derived from dealings in property;

interest;

rents;

royalties;

dividends;

alimony and separate maintenance payments;

annuities;

income from life insurance and endowment contracts;

pensions;

income from discharge of indebtedness;

distributive share of partnership gross income;

income in respect of a decedent; and

income from an interest in an estate of trust.

9. May the child support percentages be applied to the combined parental income in excess of $80,000.00?

Yes. The Court of Appeals stated, "The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the Court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage." The Court determined that as there was "no extraordinary circumstances present," application of the statutory percentage to the income above the $80,000 was justified and not an abuse of discretion."

10. What are the basic child support obligation "add-ons"?

Mandatory award of child care expenses;
Discretionary award of child care expenses;
Mandatory award of health care expenses;
Discretionary award of child educational expenses--private school and college expenses (Historical Perspective).

11. What are the penalties for non-payment?

Family Court Act Section 454 "Powers of the Court on violation of a support order" provides that upon a finding that a respondent has failed to comply with any lawful order of support, the Court may:

enter a money judgment;

make an income deduction order for support enforcement;

require the respondent to post an undertaking;

make an order of sequestration;

suspend the respondent's driving privileges;

suspend the respondent's state professional business license;

suspend the recreational license(s) of the respondent; or

require the respondent, if the persons for whom respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the Social Services Law.

There are additional remedies concerning attorney's fees or jail time. Also, under Family Court Act Section 458-a, if support arrears are equivalent to or greater than the amount of current support due for a period of four months, the Court may order the Department of Motor Vehicles to suspend the respondent's driving privileges. It is unknown as to whether or not there is a current procedure for this in effect. Similarly, Family Court Act Section 458-b provides for suspension of a respondent's business or professional license under similar circumstances.

In Supreme Court, similar provisions apply to suspension of a driver's license under Domestic Relations Law Section 244-b and to suspension of a business or professional license under DRL Section 244-c.

12. What are the grounds for seeking a divorce in New York State?

There are several grounds under which a person may seek a divorce from his or her spouse. The following grounds are based upon the “fault” of one of the parties:

Cruel and inhuman treatment

Abandonment for one or more years

Imprisonment for three or more years

Adultery

The “no-fault” grounds are as follows:

One year of living apart under a separation agreement

One year of living apart under a judgment of separation

13. What is a separation agreement?

A separation agreement is a comprehensive contract where the parties agree to live separate and apart for the rest of their lives. The agreement must set forth rights and duties with respect to important issues such as custody, visitation, child support, distribution of property and all other matters that arise at the end of a marital relationship. Each of the parties should consult their own attorney to draft and prepare the agreement so that these complex issues can be analyzed and resolved appropriately. The final agreement is then filed with the clerk of the county where either spouse resides. At the end of one year from the date of the agreement, either spouse may initiate a suit for a “no-fault” divorce.

14. When does a court grant a judgment of separation?

A Court grants a judgment of separation when either of the parties brings an action for separation in the Supreme Court. A Court may grant separation based upon the following grounds, which are similar to the grounds for seeking a divorce:

Cruel and inhuman treatment

Imprisonment for more than three years

Adultery

Abandonment for less than one year

Non-support

If the Court grants a judgment of separation based upon any of these grounds, either party may sue for a “no-fault” divorce one year after the filing of the judgment and living separate and apart. A divorce will not occur automatically.

15. What is the difference between marital and separate property?

Marital property is all property acquired during the marriage – regardless of how title is actually held.

Separate property includes all property acquired before the marriage and also includes inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.

Basic Tort (Injury) Law Concepts
Each person has a duty to use reasonable care toward others. If a person fails to do so and this causes another person to be injured, we say that the defendant was negligent. The defendant becomes liable to compensate the injured party. If the injured party was partially at fault, this compensation is reduced by his or her proportionate share of fault.

A monetary award typically consists of payment for loss of past and future wages and pain and suffering. This award is intended to allow the injured party (as best as possible) to be in the position they would have enjoyed had the injury never occurred. Damages for "loss of quality of life" are one aspect of a "pain and suffering" award.

In extreme cases, such as where a defendant had been warned repeatedly about an unsafe condition, a jury may award "punitive damages". As the name implies, these damages are intended solely to punish the defendant in an effort to prevent future misconduct.

Automobile Accidents
Auto accidents receive special treatment under New York State Law. In an attempt to keep insurance rates down and to keep smaller injury cases out of the courts, the legislature passed "No-Fault" legislation. This law essentially did two things. First, it provides that a motorist's own insurance policy would provide coverage for "basic economic loss," such as medical bills, home care and lost wages up to certain limits. The second thing the law acccomplished was that it removed an injured person's right to bring suit for injuries unless he or she has suffered a "serious injury."

"Serious injury" is defined as:

A fracture
Dismemberment or serious disfigurement
Loss of use of a bodily organ or function.
Permanent loss of full use of a limb.

Injuries from Defective Products, Slip-and-Fall, Other Injuries
These are not subject to the limitations applicable to auto accidents. However, your injuries still must be very serious before we can accept your case.

Why Sue?
Because an injured person should not have to become a ward of the family or, for that matter, a ward of the taxpayer. The person who should pay is the person who caused the injury either directly or through negligence.

The Legal Process:
Case Review:
The strengths and weaknesses of each case are assessed and the liability of each of the potential defendants is evaluated. We review all medical reports and police files. Depending on the nature of the case, we may consult with medical, vocational rehabilitation, accident reconstruction or other experts. We project a range of monetary values which we believe would likely be awarded by a jury. We discuss with the client the merits of the case and the likelihood of prevailing at trial.

Settlement Efforts:
Discussions are opened with the defendant's insurance carrier in an attempt to settle the matter. Many cases are able to be settled out of court at this time. However, if these discussions are unsuccessful, we recommend a lawsuit.

It is important to remember that even when a case is placed in suit, settlement can be reached at any point along the way. Some cases are settled at jury selection or even during trial. However, no case ever is settled unless the carrier knows that the case is prepared to be presented to a jury if necessary.

Lawsuit:
Unfortunately, insurance companies sometimes yield to the profit motive and would prefer to keep their money invested than pay reasonable settlements. Some try to outwait you in an attempt to bully you into settling for a fraction of what the case is worth. Some spend their money on expensive defense attorneys to bob, weave, duck and delay the claim as long as possible. The filing of a lawsuit tends to be a great "leveler" between the wealthy insurance company and the injured person who frequently is unable to return to work because of the injuries.

Our policy is to place a case in suit immediately if the carrier is unwilling to pay what we feel the case is worth, or if we sense any delaying tactics are being employed by the insurance adjustor. This policy actually helps us to settle more cases in the long run.

Once a case is placed in suit, we vigorously pursue it. Even so, the process usually takes many months or even years, especially in cases involving multiple defendants or involving complicated product liability issues. What the jury sees - - the trial itself -- is only the tip of the iceberg: the end result of painstaking and diligent pretrial preparations.

Appeals:
The losing side frequently files an appeal which the winner must then defend. This involves a review of the record by a panel of Supreme Court judges. Briefs are submitted by both sides and the case is argued before the panel by the attorneys. Appeals commonly take nine months to one year to complete.

Contingency Fees
Injury cases require so much time and attention that most injured people could not afford to hire an attorney were he or she to charge an hourly rate; thus, personal injury cases are almost universally handled on a "contingency fee" basis. A "contingency fee" is the fee earned by the attorney based upon a percentage of the award or settlement, usually one-third.

In medical malpractice cases, a sliding scale is used to determine the fee but basically it's the same idea. If there is no recovery, there is no attorney fee.

Given the huge investment of time and resources for all cases, it is practical to file suit only if the case meets tort law requirements and is likely to produce a settlement or award of damages sufficient to cover the time and expense incurred in pursuing it.