On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

The findings of a study consisting of women in various stages of divorce showed that many were unprepared for upcoming financial “surprises.”

The women cited a variety of potentially problematic financial issues as a result of divorce, and, among all age groups, there was one universal concern.

About the study

The online marketplace Worthy conducted the 2018 study entitled “Building a Financial Fresh Start.” The participants included 1,785 women who were either already divorced, facing divorce or somewhere in the process. When asked if they had encountered any unexpected financial issues, 38% of the women aged 55 or older said they had while nearly half of those in younger age groups admitted to experiencing financial surprises.

Financial role in marriage

To better understand these answers, the survey questioned participants about their financial role while married. About 23% of women between the ages of 18 and 54 said they had relinquished all marital financial control to their husbands while 18% of the women 55 and older had done so.

Biggest financial concern

Many of the survey participants worried about having to take responsibility for all post-divorce financial decisions, including earning a living, managing a budget and saving and investing for the future. Overall, the biggest financial concern was having to live on one income.

Retirement worries

The study showed that 38% of the 55-and-over age group expressed concern about the retirement years, a number that was twice as high as reported by millennials who have more time in which to prepare for retirement and become educated about investment matters. The survey highlighted how important it is for women to cultivate an understanding of their finances while married, just in case divorce ever appears on the horizon.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Many households find that it is more cost-effective to have one spouse stay home to take care of the house and children than it is to pay for childcare and to hire professionals for things like cleaning and cooking. Staying at home can have a lot of benefits, from maintaining control over the state of your house and your diet to having time with your children while they are young.

Unfortunately, if you are the one who stays home with the kids, it can put you on uneven footing with your spouse if your relationship starts to fall apart. You might feel like you have no options because you can’t currently support yourself or your children with the kind of wage you can command.

Instead of staying in an unhappy marriage just because you feel like you don’t have options, it is smarter to learn about what resources you do have if you believe you need a divorce.

If you file for divorce, you may be able to stay in the family home

If you are the one who provides most, if not all, of the care for your children, it could mean that you have a claim to at least temporarily stay in the family home when you file for divorce. The courts will consider your current role when setting a temporary custody order.

They want to do what’s best for the kids, which usually involves minimizing disruption. That could mean a temporary situation where you stay in the family home with the kids until the courts make more final decisions.

You can ask for spousal support in some cases

Child support is more or less automatic when a couple with minor children initiates divorce proceedings. However, you will have to ask for alimony or spousal support if you think you need it. The court will evaluate your request based on factors like the length of your marriage, your earning potential, the custody of the kids and your spouse’s income.

You can even ask for help paying for your attorney

Good legal advice is critical for those going through drastic life changes, like divorce. You shouldn’t have to forego getting adequate help just because you haven’t been earning a wage in the last few years. New York courts can and do allocate attorney costs to the spouse with resources in a divorce situation where one spouse does not have enough income to cover their attorney fees.

Even if the courts do not order your ex to pay your lawyer costs, there may be other forms of help available. Your parents, for example, may help cover the cost of getting a lawyer because they want to ensure good custody terms that will protect the relationship with their grandchildren. Extended family can also help you by offering you resources for employment or education and even a place to stay where you won’t have to incur steep rental costs.

Asking for help and getting advice before you initiate divorce proceedings as a dependent spouse can set you up for a more comfortable transition to your new life.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C.

When it comes to divorce for parents with minor children, few things are more contentious than the amount of support that the New York courts order one parent to pay the other on behalf of the kids.

Child support often falls woefully short of covering the expenses that children incur every month. Between clothing for bodies that are constantly growing, food, shelter and medical insurance, each child could represent hundreds or even thousands of dollars worth of expenses every month. The parent receiving support is likely to feel like the amount that they receive is not nearly enough for what they have to spend.

Of course, having a large amount taken out of a paycheck also feels unfair to the parent paying child support. It is a difficult decision that the courts have to make based on both state law and your family circumstances. What are the primary factors that dictate the amount of child support paid during and after a divorce?

The New York courts focus on two primary factors

Unlike in other states, where child support reflects a number of factors, in New York, the number of children and income of the parent paying are the primary considerations. Those who make up to $148,000 will pay a percentage of their wages based on the number of children they have.

One child could mean paying 17% of your wages in support, while two could result in paying 25%. Three children will mean paying 29% of your income, four kids mean 31% and five or more will mean at least 35% of your wages go to child support.

For parents who make more than $148,000 a year, the judge presiding over their divorce case can decide whether they want to apply the percentage rule or deviate from it because of the higher level of household income.

Support levels are not set in stone despite being a court order

The judge in your case will issue a child support order that compels the non-custodial parent to pay a certain amount of support. This process is often automatic, with employers withholding money directly from someone’s check to ensure that child support always gets paid.

Given that child support is the result of a court order and a legal obligation on the part of the parent paying, many people assume that once they have a support order, it will remain the same until the children age out of support. However, New York does allow both the parent paying support and the parent receiving child support to request a modification hearing when circumstances drastically change.

Fighting for reasonable support levels in your divorce is as important as following up with modification requests when the needs of your children or your income changes.

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by josephnivin

As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, serves to eliminate it.

Mediation, whenever possible, is an easier and less expensive process than litigation for your family law clients. It helps them decide between themselves how they will raise their children, even though they will no longer be in a relationship with each other.

Below is advice you can give your clients to let them know why custody litigation is so much more difficult than mediation.

Going Through the Litigation Wringer

Litigation is scary, and fear leads to anger. Anger is the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already existed. Even getting served with a petition that lists your ex as a “petitioner” and you as the “respondent” is enough to make your blood boil.

This is only the tip of the iceberg. If your child is old enough to express opinions on the application for custody or visitation, then your child will be assigned an attorney whom you do not know. That attorney needs to interview your child outside of your presence. If the attorney determines that your child is unable to use independent judgment to decide what he or she wants, then that attorney, who may or may not be a parent or have any knowledge about child development, must take a position based on his or her own opinion. You have no say at all in the position that the attorney takes. If the attorney determines that your child is able to exercise independent judgment about his or her position in the case (usually if the child is at least seven years old), then the attorney must, except in unique circumstances, advocate for what your child wants. So, if your child is 12 and you don’t let the child use social media, but your ex does, and your child wants to live with your ex for no other reason, then the attorney must advocate for your child to live with your ex. While the attorney for the child’s position does not take away the judge’s ability to decide otherwise, the position of the attorney for the child is very important, even if the position is based on nothing other than the child’s wants.

The result? Custody litigation gives children a great deal of power over their parents.

Remember that fear that we were talking about? It drives parents to go to war against each other. Mistakes that everybody makes are blown up to make the other person look like the most neglectful possible parent.

Unless you qualify for assigned counsel, you and your ex will pay for the whole show. You may even be ordered to pay for the attorney assigned to your child, even if the attorney is going to court and bashing you. You may also need to pay for a forensic evaluation, in which a psychologist evaluates you, your ex, and even your child. The only way in any litigation, including custody cases, to limit the expense is to settle the case, or in other words, to come to an agreement. As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult.

This same animosity creates more work for the lawyers, which makes the litigation more expensive. There might be such bad communication that the lawyers need to resolve relatively minor issues for you and your ex, such as minor modifications to the parenting time schedule for special family events. Lawyers charge by the hour for the time that they spend doing this. There are often other applications that people tell their attorneys to make, such as applications for temporary custody. If your ex asked his or her lawyer to make such an application, and you want your lawyer to respond to it, then you will need to pay your lawyer to do so. You may even need to pay the attorney for the child to respond to it, even if the attorney is supporting your ex. In some cases, the court can order your ex to pay your fees, but even if the court says no, you’ll need to pay your attorney for the time that he or she spent making the unsuccessful application, in addition to the time already spent responding to your ex.

What Is the Solution? Mediation

The easier, softer way is to reach an agreement with your ex about custody issues before going to court. This may be no easy feat, and it may be extremely frustrating. However, it will probably be easier than litigation. But do note that mediation is not a good option in cases involving domestic violence, child abuse or neglect, or parental alienation.

If you need a mediator, then do your homework before hiring one. Anybody can put up an ad on Google and open a mediation service, with no training or knowledge on the subject. There is absolutely nothing illegal about that. Therefore, do your research and make sure that you get someone qualified.

If you find yourself in court, make it as boring as possible. The less that’s going on, the cheaper and less stressful the process will be. Treat your child’s parent the way that you would expect someone who respects you to treat your parents. This doesn’t translate into “be a doormat.” Just don’t let anyone make you do things that make you feel ashamed of yourself. Remember that your children will always see your behavior as acceptable, so don’t do anything that you’d tell your children not to do.

So How Can Your Lawyer Help?

Lawyers with mediation experience can advise you on what actions are likely to cause your case to take the nightmare track that was already discussed, and what actions are likely to prevent it.

Your lawyer can advise you during your mediation. Not all mediators are lawyers. A lawyer can advise you about whether the settlement options being discussed in mediation are fair, and more importantly, whether they are likely to give you a good future. Lawyers can also advise you about any issues that should have been discussed that were missed, and whether the proposed settlement has “holes” that leave you vulnerable to future litigation.

Of course, it takes two to mediate. If you find yourself in court because your ex is hell-bent on going there, an attorney can create a game plan to put you in the best possible position for settlement or trial. In most cases, people end up settling before they get to trial. If you can’t settle, then there will be a trial, and you will need a lawyer for that.

Conclusion

The family court system creates unnecessary animosity between separated parents, which
compromises people’s abilities to effectively co-parent. It falls on parents to come up with
alternative ways to work out parenting time and support without unnecessarily damaging their abilities to raise their children together. If you are in a situation where the other parent is not cooperating with you, then an attorney can help you to minimize the animosity, the emotional toll, and the expense of litigation. If you have a co-parent who is willing to work with a mediator, then attorneys can advise you during the process, help you to resolve issues of custody without litigation, and work with you to minimize the risk that you will need to go to court in the future.

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by josephnivin 

In this “Just the Facts” series, I’ve already covered Child Support, Custody Cases, and When Mediation Doesn’t Work. I’m now sharing the most powerful lesson — and also the simplest — for the final installment of this series: Follow the Golden Rule. Treat others how you want to be treated and also insist that your needs, and those of your child, are respected.

Remember that your children will always see your behavior as acceptable, so don’t do anything that you’d tell your children not to do. Treat your child’s other parent the way that you would expect someone else to treat your parents.

This doesn’t translate into, “be a doormat.” Just don’t let anyone make you do things that make you feel ashamed of yourself.

If you find yourself in court, make it as boring as possible. Don’t throw stuff at the wall and hope that something sticks. The less that’s going on, the cheaper and less stressful the process will be. That’s because there will be fewer issues for the attorneys to fight about, and as a result, fewer issues that you’ll have to pay your attorney to fight about.  It will also mean fewer court appearances to attend because there will be fewer issues that the court will have to handle.

If you’re the custodial parent and the other parent simply will not support your child without a court order, then go to court. If you have an order of support, and the other parent doesn’t pay it even though they can, then go to court to enforce the order. People do not have the right to ignore their obligations to support their children.

If you are in a situation where the other parent is not cooperating with you, then an attorney can help you to minimize the animosity, the emotional toll, and the expense of litigation. If you are fortunate enough to have a co-parent who is willing to work with a mediator, then attorneys can advise you during the process, help you to resolve issues of custody and support without litigation, and work with you to minimize the risk that you will have to go to court in the future.

I wrote this “Just the Facts” series from my heart. I care deeply about families and aim to help them with their conflict. I hope this series has eased concerns or answered questions you may have had. Do you have any other questions or concerns about your family matter? Please do not hesitate to contact my office at (347) 642-0376 or schedule a consultation via our website.

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by josephnivin 

By now you’ve probably figured out that mediating your divorce makes sense in most cases — and you may be wondering about what types of cases are not a fit for mediation.

If there is domestic violence, child abuse or neglect, or parental alienation, litigation becomes the only option. It is generally impossible to mediate a case if:

• You are genuinely afraid of the other side.
• You and/or the children need protection from the other parent’s abuse.
• The other parent is actively trying to alienate your children from you.

In those cases, you generally need to go to court to get orders protecting you and/or the children from the other parent’s behavior.

That said, there are certain situations in which resolving your case in mediation is highly improbable. Sometimes people find themselves in court simply because an ex is hellbent on going there. In that case, an attorney can create a “game plan” to put you in the best possible position for settlement or trial. Even with an ex who wants his or her “day in court,” most cases end up settling before trial.

Sometimes it’s not the ex who is pushing you into court. I once represented a father who had already come to an agreement with his wife about how often he would see his children. The documents were drafted and ready for signatures. However, his mother-in-law did not like him, so she convinced his wife to change her mind about agreeing to the schedule. She only let him see the children at the home that she shared with this same mother-in-law, and she took him to court for custody.

The judge put into place the schedule that my client and his wife had previously agreed to, and then adjourned the case for possible settlement. After my client dutifully avoided arguments with his wife and mother-in-law, the wife withdrew her application for custody and agreed to follow through with the original agreement.  Nobody’s telling you to be a doormat, but as I always say, it’s always better if your situation is as boring as possible while you’re in court.  “Boring” usually means less expense, less stress, and fewer court appearances.

Whether your case is in mediation or you’re already in court, your lawyer can advise you on what to do (or not to do) to prevent your case from going into a tailspin. When your case is on the “settlement track,” a lawyer can advise you about whether the settlement options being discussed are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed and whether the proposed settlement has “holes” that leave you vulnerable to future litigation.

To summarize, if you are in settlement discussions with the other parent, then lawyers can advise you on issues that should be discussed, whether the proposed agreements are fair to you and to the children, ways to make the agreement less vulnerable to future litigation, and possible creative ways to come to a resolution that is in your child’s best interests.

Stay tuned for the final installment of my Just the Facts series. Have any questions about mediation, litigation, or any other family law matter? Don’t hesitate to reach out to me via my website or call me at (347) 642-0376.

Joseph H. Nivin, Esq.

The Law Offices of Joseph H. Nivin, P.C.

(347) 642-0376

118-35 Queens Boulevard, Suite 1220A
Forest Hills, NY 11375

The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168

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by josephnivin 

As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, eliminates trust — to the detriment of the children.

The most basic reason why the current system for resolving custody issues is so bad for children is perhaps the hardest to cure. When parents are breaking up, many assume that they will go to court and that a judge will decide who gets custody. The better alternative is not as well known.

Mediation helps people to decide, between themselves, how they will raise their children even though they will no longer be in a relationship with each other. Unfortunately, rather than seek a mediator, many people currently go to court first. Even when people go to a mediator first, when it becomes too difficult, many then go to court, which they see as the “default” simply because it’s a better-known forum.

So why is litigation so much worse than mediation? First, litigation is scary, and fear leads to anger. Anger leads to the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already exists. Even getting served with a petition that lists your ex as a “petitioner” and you as the “respondent” is enough to make your blood boil.

Once in court, if your child is old enough to express opinions on the application for custody or visitation (in the judge’s opinion, sometimes as young as four), then your child will be assigned an attorney — an attorney who you do not know from a hole in the wall. That attorney has to interview your child outside of your presence. If the attorney determines that your child is unable to use independent judgment to decide what he or she wants, then that attorney — who may or may not be a parent or have any knowledge about child development — has to take a position based upon his or her own opinion about what is in your child’s best interests.

Parents have no say at all in the position that the attorney takes. If the attorney determines that your child is able to exercise independent judgment about his or her position in the case (which usually translates as the child being at least seven years old), then the attorney must, except in very unique circumstances, advocate for what your child wants.

If your child is 12 and you don’t let the child use social media, but your ex does, and your child wants to live with your ex for no other reason, then the attorney has to advocate for your child to live with your ex. 

While the attorney for the child’s position does not take away the judge’s ability to decide otherwise, the position of the attorney for the child is very important — even if the position is based upon nothing other than the child’s wants.

Unless you qualify for assigned counsel, you and your ex will pay for the whole show. You may even be ordered to pay for the attorney for the child, even if that attorney bashes you in court. You may also have to pay for a forensic evaluation, where a psychologist evaluates you, your ex, and even your child, to help the court to come to a determination.

Custody cases can, and do, bankrupt people. The only way to limit the expense of any litigation is to settle the case.

As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult.

The easier, softer way is to try to come up with an agreement with your ex about custody issues before going to court. This may be no easy feat, and it may be extremely frustrating. However, for the reasons that you have already read, it is probably easier than litigation. This does not apply in cases where there is serious domestic violence, child abuse or neglect, or parental alienation.

If I have convinced you to talk to a mediator, please do your homework before hiring one. Not all mediators are lawyers, and even those who are can’t give you legal advice. A lawyer can advise you about whether the settlement options being discussed in mediation are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed, and whether the proposed settlement has “holes” that leave you vulnerable to future litigation.

Do you have any questions about your custody case? Don’t hesitate to reach out to me with your questions or concerns.

Stay tuned for the next installment of my “Just the Facts” blog series on important family law matters.

Joseph H. Nivin, Esq.

The Law Offices of Joseph H. Nivin, P.C.

(347) 642-0376

118-35 Queens Boulevard, Suite 1220A
Forest Hills, NY 11375

The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168

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by josephnivin 

I have spent most of my career in New York’s Family Court system. I’ve had many people come into my office for consultations who are cynical “veterans” of the system, and others who tell me that they have heard “horror stories.” This series will describe the reasons why the Family Court system generates such visceral reactions and the role that attorneys can play to generate better results.

One area that causes serious resentment in Family Court is child support. As one wise attorney said, “In the worst-case scenario, they feel like they’re getting robbed. In the best-case scenario, they feel like they’re paying taxes.” Why does paying child support feel so different from just buying things for your children?

The answer lies in the structure of child support payments. Parents are sued for it. Getting served with papers — papers filed by the other parent of your child (the petitioner) against you (the respondent) — creates an atmosphere where it is easy to forget that the money is for your children’s basic needs.

Another thing to consider is that the system actually discourages people from waiting to file for support. Most matrimonial attorneys tell people to file as soon as possible because child support orders are retroactive to the date of filing — meaning that if you try to work something out without going to court, can’t come to an agreement, and then file, the recipient spouse can’t recover any money from before the date that he or she filed.

The child support system is rough on people paying it at all stages. The first calculation is for “basic” child support, which is supposed to be for basic needs like food, clothing, and shelter. Basic child support is calculated based upon a percentage of combined parental income up to a “cap” that is periodically adjusted (as of 2020, $154,000.00).

Anything above the “cap” is based upon the needs of the children. The amount in basic child support to be paid is based on a percentage of the paying spouse’s income. 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% and above for five or more children. The only taxes that are taken out are FICA taxes (Social Security and Medicare) and New York City taxes. Therefore, when they calculate these percentages, it’s before, not after, you pay federal and state income taxes.

What happens if the court finds that the non-custodial parent didn’t pay, but really couldn’t? The court still will issue a money judgment, which will ruin the non-custodial parent’s credit, and can lead to wage garnishments, liens on real estate, etc. This is in addition to possible administrative remedies, which the state can do without a court order if the non-custodial parent falls behind on child support. Those remedies include suspensions of driver licenses, suspensions of recreational licenses, and revocations of passports. They can even ask for professional licenses to be suspended. Attorneys have had their law licenses suspended for falling behind on their child support.

Policy changes are sorely needed. Courts should have the freedom to forego issuing money judgments when people are unable to pay their child support through no fault of their own.

One way to avoid the courts is to work with a mediator who is trained in non-adversarial techniques for reaching agreements. By doing so, each couple can customize their agreements to fit with the situation “on the ground,” like an income that varies with the seasons. If you would like to know more about mediating child support agreements, contact me. Stay tuned for more posts on “just the facts,” looking at other essential components of family court and law.

Joseph H. Nivin, Esq.

The Law Offices of Joseph H. Nivin, P.C.

(347) 642-0376

118-35 Queens Boulevard, Suite 1220A

Forest Hills, NY 11375

The Chanin Building

122 E. 42nd Street, Suite 2100

New York, NY 10168

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Living in the United States as a lawful permanent resident has many benefits. For the most part, you enjoy many of the same rights and protections that citizens do. However, there are limitations to those rights.

You cannot vote or hold public office. Also, you will still have a passport from your country of origin and could be subject to deportation in certain circumstances. Still, permanent residency is an important step in the process that can result in your securing citizenship despite coming from another country.

Naturalization is the process by which a foreign national becomes a United States citizen. Are you currently ready to begin the process of going from a permanent residence to a full-fledged citizen?

Have you been in the United States for long enough?

The naturalization process is only available to those who have been in the United States for a significant amount of time as a lawful permanent resident. Typically, people must have had a Green Card for five years to apply for naturalization.

They also need to have stayed in the United States for 30 months out of the last five years in order to qualify for naturalization. Additionally, applicants usually need to be 18 years old and to have lived in the same state for three months prior to their application.

Do you believe you could pass certain necessary tests?

Part of the naturalization process will involve showing that you have the knowledge and understanding to fulfill your duties as a United States citizen. As such, you will have to complete a test that shows you understand the English language and another test that covers history and government topics, also known as a civics test. While the thought of taking a test to establish your citizenship may seem frightening, there are many preparatory tools available for those who want to naturalize.

What other steps are part of the naturalization process?

In addition to qualifying based on your residency and passing a test, you will also need to submit documentation to the United States Citizenship and Immigration Services (USCIS) and submit to biometric screening. That could mean taking your fingerprints and other personal identifiers at an appointment set for you by the USCIS.

Provided that you complete all of these steps and an interview, you could eventually become a naturalized United States citizen.

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by josephnivin 

What is included in an order of child support? 

Basic Child Support

Basic child support is meant to provide for a child’s basic needs, including food, clothing, shelter, and school supplies. The amount of support is calculated via a formula based on the parents’ incomes and how many children there are.

Some issues we encounter when determining the base of child support obligation:

The Cap

If the combined parental income is above the cap, which is $154,000 as of April of 2020, anything above the cap is based upon the needs of the child, which is determined by the child’s standard of living.

What if the non-custodial parent is self-employed?

Often a self-employed parent will not include some personal expenses they write off as business expenses when reporting their income. If the court finds the parent has failed to provide a credible account of their income, the court may actually base the entire order (not just the part of the order based upon income above the cap) on the needs of the child rather than the reported income of the parent.

When might the court deviate from the formula?

The formula may not always be applied to a T.  If one parent makes significantly more than the other parent, if the non-custodial parent has another child at home that he or she is also responsible for supporting, or if, for example, the non-custodial parent has high student loan payments but that education has enabled them to make a higher income, then the court may “deviate” from the formula, meaning that the court may issue an order of basic child support that is different from what the formula would call for.

Unreimbursed Medical Expenses

Each parent will be ordered to pay for any unreimbursed medical expenses, generally based upon each parent’s pro rata share of the combined income. This means that the parent who earns more will probably have to pay more of the unreimbursed medical expenses than the parent who earns less.

Child Care

The court has to order the non-custodial parent to contribute child care expenses if that child care is necessary to enable the custodial parent to work or go to school.

Educational Expenses

If your children attend private school, the court may or may not order the non-custodial parent to contribute to tuition. Also, the court may or may not order the parents to contribute to the child’s college expenses.

In New York, child support generally continues until the child turns 21, but the parents may agree for child support to go until the child turns 22 if the child is still enrolled full-time in school. Child support might end before the child’s 21st birthday if the child is emancipated. Generally, that means the child is self-supporting; for example, if the child enlists in the military.

Every case is unique. If you want more information about your case then please call my office and schedule a consultation. I look forward to helping you out.

Joseph H. Nivin, Esq.

The Law Offices of Joseph H. Nivin, P.C.

(347) 642-0376

118-35 Queens Boulevard, Suite 1220A

Forest Hills, NY 11375

The Chanin Building

122 E. 42nd Street, Suite 2100

New York, NY 10168

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