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John M. Dudziak understands that clients who seek out his help are going through some of the most difficult times of their lives. Divorce and Child Custody issues are some of the most stressful problems you can face.
Our dedicated Buffalo Divorce Lawyers do everything in their power to help clients through these issues as quickly and as painlessly as possible.
After making the decision to enter private practice, John M. Dudziak began practicing family law, so he has the experience and the skill necessary to help you and your family get through this difficult time.
By focusing on Family Law, our Buffalo divorce lawyers can lend their knowledge in many different practice areas, such as:
- Divorce Law
- Paternity Testing
- Domestic Violence
- Property Division
- Custody and Visitation
- Child Support
- Spousal Maintenance
- Changes to Permanent Orders
- Relocation
- Legal Separation
- Settlement and Mediation
Our Buffalo Divorce Lawyers Answer Your Frequently Asked Questions
How can I Start the Divorce Process?
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The first thing people need to do when they’re thinking about starting a divorce action is to meet with some Buffalo divorce lawyers. You need to know what your rights are when you head into the process. The idea of getting a divorce is very scary for a lot of reasons, emotionally, financially. People don’t know what’s going to be down the road unknown from that step so it’s very important to sit down and talk to a few Buffalo divorce lawyers about what your rights are as you head into the process, what you should and shouldn’t do in terms of how to handle how the children are going to be addressed, how financial issues are going to be addressed. It’s very important to know what your rights are and to know what your responsibilities are through the courts before you take any steps.
How do you Choose a Divorce Attorney?
- Choosing a divorce attorney can be an intimidating process. People are very concerned about what’s going to happen to them through a divorce, and what’s going to happen to their families. It’s a very emotional time. The most important thing is to meet with as many Buffalo divorce lawyers as you need to in order to find an attorney that more than anything makes you feel comfortable, who listens to your concerns, who’s responsive to your questions, and who seems knowledgeable in the field. It’s a matter of trust. You may meet with an attorney who is very knowledgeable but there isn’t that trust or connection. That’s why it’s very important to meet with as many Buffalo divorce lawyers as you need to. Many attorneys offer free consultations and may be able to just sit down with you and talk about your specific case. It’s a matter of finding the right fit.
I Just Received a Divorce Summons, what Should I do?
- When people receive a summons to appear in a divorce, they’re very often scared, intimidated, and concerned about what the future is going to hold. The first thing to do is to call our Buffalo divorce lawyers. It’s very important to do that right away because the summons provides a timeline for response. If you don’t respond within 20 days if you’ve been personally served with that summons, the other party would be able to obtain a Default Judgment against you which basically means you wouldn’t have an opportunity to participate in the resolution of the divorce. It’s very important to reach out to a lawyer right away, make sure that you’re following through with the appropriate timelines to respond, and to come up with a plan as to how to respond, whether it be to the other party directly in terms of moving forward toward resolution or if the attorneys are going to get in touch right away and start figuring things out moving forward.
What are the Differences Between a Contested and an Uncontested Divorce?
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Generally, when people are talking about an uncontested divorce, they’re talking about where the parties have reached a resolution outside of court by agreement. That agreement is generally called a property settlement agreement or separation agreement. They either reach that resolution through the assistance of attorneys or on their own before they even meet with an attorney. In an uncontested divorce that agreement becomes incorporated into a judgment of divorce. The parties may not ever go to court, and your Buffalo divorce lawyers may only need to file that paperwork with the court to obtain a resolution of your divorce matter.
In a contested divorce there may be one issue that needs to be resolved for the courts or there may be many issues that lead you to head to court. It doesn’t necessarily effect the timeline or the cost of your divorce if you need court intervention. Sometimes the courts are very helpful in assisting people in reaching a resolution. Generally, that’s the difference between those terms.
What is a Separation Agreement?
- Very often people are interested in coming up with a Separation Agreement which can be an amicable way to come up with terms that are going to resolve how people are going to live separate and apart. Sometimes people can reach a resolution through separation and then remain separated. Ultimately, those parties may decide later to use that separation agreement to obtain a divorce. Sometimes the divorce process can be resolved through a separation agreement if you know that’s the resolution you’re seeking straight from the beginning.
What Should I Bring to My Free Consultation?
- If you’ve been served with a summons, it’s always helpful for me to see that summons. If your case is ongoing and there have been some pleadings filed, I like to see those pleadings. I like to know what the prior orders are. I like to know where the case stands. If there’s an upcoming court appearance, it helps me to see that documentation to know where the case is from the court’s perspective.Otherwise, when people first come to me they’re coming in for a free initial consultation. More than anything I just want to have a conversation. I want to get to know you. I want to get to know what the facts and circumstances are in your case, what your needs are, what I can do to help you. If you come in at that first appearance with me and don’t have paperwork with you, that’s fine. That paperwork can be gathered after the fact. What’s most important for an initial consultation is just to come in, sit down, and then talk about what the steps are going to be moving forward.
How Much Does a Divorce Cost?
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It can be an intimidating thing entering into it not knowing what the costs may end up being. What I generally tell people is it really depends upon the specifics of your case. There can be a range depending upon whether or not your case is resolved outside of court by agreement or if you have to go through the court system to reach a resolution. The thing to do when you start off the process is to sit down, discuss with a lawyer the details of your case. If I know the facts and circumstances of your specific case, I can give you a really good quote as to what I expect the cost of the divorce is going to be up front and then what you might anticipate along the way including court fees and other fees associated with the divorce.
How Long Does a Divorce Take?
- I generally tell people that it depends upon whether or not their divorce is contested or uncontested. On average the process takes six months to a year. It will depend upon a number of factors, but specifically whether or not the matter is resolved by agreement or if you need to go through court to reach a resolution.
What Happens Throughout the Divorce Process?
- Obviously that’s very different from one person to the next. Everybody’s case is very different. There are specific steps that need to be taken in every case. The parties are going to need to go through the assistance of attorneys reach resolutions as to what’s going to happen with issues of child custody and support if there are children involved, how to reach resolution regarding their home if there is real estate involved, property, all of those details. All of those details are worked out either through the courts or outside of the courts. In every case a summons is filed with the court, which is the legal step to kick off the process.Once the summons is filed, then the court is ready to document your resolution, whether it be with court assistance or without court assistance. When parties need to head into court, you’re going to be assisted through the process to reach resolution by the court system. There will be most likely several court appearances where you and your attorney will need to appear. The other party and their attorney will be there as well. The court will assist you in reaching resolution through the court process. Most of the time you’re going to be signing an agreement at the end, which puts into paper the terms that you and the other party have reached, and that becomes incorporated into a judgment of divorce. In some cases, litigation is necessary, and then a judge will make a decision as to what the resolution of your divorce will be.
I can’t Afford a Divorce, Can I have My Spouse Pay the Attorney Fees?
- When you’re the party in the relationship that was not the earner in the family, it can be a very vulnerable situation in order to obtain the legal advice that you need to advise you through the divorce process. You can obtain a contribution towards your attorney’s fees either by agreement through the Buffalo divorce lawyers or there could be a motion made on your behalf by your attorney to obtain that contribution from the other party. Generally, fees are ordered when one party has a greater ability to provide for those fees, greater financial resources, or if one party in rare instances has held up the proceedings for some reason, failed to participate, or caused there to be a reason why fees are greater. In that instance fees may also be ordered.
How can I get Divorced if My Spouse Lives in Another State?
- If one party is residing in one state and another party is residing in another state, the issue that comes before me is to determine the jurisdiction in the case. The court in New York State needs to have jurisdiction over a matter in order to help resolve your divorce. You can obtain jurisdiction in New York if one party has resided in the state for a period of one year or greater. Only one party needs to reside in New York. If the other party resides out of state, you still may have jurisdiction to reach a resolution in New York. You may have to address with your attorney the specific difficulties that you may have in serving the other party with the summons, but very often I can assist my clients in reaching out to process servers in other states and service is usually fairly easily obtained.
Can I get Divorced if I don’t know Where My Spouse Lives?
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It can be very difficult heading into a divorce process if you are not in touch with the other party. If there’s been a long period of estrangement and perhaps you don’t know the other party’s contact information in order to serve them with a summons which is the first step which is necessary to start the divorce process. If you don’t have a last known address for the other party, my office generally assists people in reaching out to see what kind of information we can gather so that we can obtain a last known address. We have to make some effort to try to serve the other party with the summons personally. If we are unable to do so, we can make a motion to the court on your behalf to ask for what’s called substituted service which would allow us to, by a number of means, provide what the court would deem to be sufficient notice so that we can move forward with the divorce.
How Long Must I Live in NY Before Filing for Divorce?
- In New York you have to reside in the state for a period of one year before you have jurisdiction to have New York state hear your divorce. You do need to establish that period of residency before the action can be filed. Only one party needs to reside in the state for that period of time.
What Happens with My Children During the Divorce?
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When heading into the divorce process, it’s very scary about what’s going to happen to you but more than anything people are concerned about their children. In most cases, I make it my job to help you find resolution for your children. Resolution in divorce matters is best for children. Children who go through the divorce process along with their parent’s fair very well when their parents are not exposing them to conflict, are not arguing in front of them, and when they reach resolution. I generally advise my clients in a way that they can help find a safe, fair resolution for their children.
Sometimes when resolution can’t be reached just by the parties or just through the Buffalo divorce lawyers, there may be an attorney assigned called an Attorney for the Child. You may also hear that attorney called a Law Guardian. That attorney will be assigned to represent the child or the children through the proceedings, to represent their stated position, and will help the parties reach resolution. That attorney is looked to by the court to be the voice of the children through the process. Ultimately at the end of your divorce, there will be a resolution as to custody whether there’s going to be joint custody or sole custody to either party, and then also an access schedule, which sometimes people also call visitation, which will determine where the children are going to be throughout the week and sets forth holiday schedules as well.
Can I Share the Marital Home with My Spouse?
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A lot of people talk about not wanting to abandon their home thinking that it’s going to have some repercussions in the resolution of their divorce. I generally tell people that if there are children involved, it’s very important to consider making a plan as to whether or not you should reside together and how that’s going to affect the children. I think that should be the first consideration. If one party does make the decision to leave, whether it’s related to keeping children away from conflict or not, for any reason why they may choose to leave, your attorney needs to advise you as to how to establish your rights so the court doesn’t prejudice you in any way in terms of your right to the marital residence, in terms of equitable distribution. Also, it’s very important to obtain your attorney’s advice as to how it may affect issues of custody and access.
If My Spouse Moved Out of the House, are they Allowed to Move Back in?
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It can be very difficult going through the divorce process to determine who’s going to reside in the marital residence. Very often, one party will leave and the other party will remain in the home. If one party leaves and is then looking to move back into the marital residence, legally speaking they have the right to do so but it may not be in the party’s best interest and it certainly may not be in the best interest of the children. It’s important to talk to your attorney if that issue arises and you may need to seek the assistance of the court to protect the parties and the children in determining who’s going to remain in the marital residence.
What is Divorce Mediation?
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Divorce mediation is the process by which you and the other party are going to sit down together with a mediator who is a neutral party who will help facilitate a conversation between you and the other party to reach a resolution in your matter. They’re not acting as an attorney advising either one of you. It’s the mediator’s role to remain neutral and to help guide you through the issues that you need to resolve in order to reach a resolution in your divorce. You may also seek the advice of separate counsel to help guide you through the process.
It’s very important even if you’re not advised by an attorney through the mediation process to have an attorney review the agreement that the mediator has prepared to make sure that the agreement is enforceable and that its addressed your rights and the other party’s rights. The mediation process can be a very amicable and fast way to reach resolution if you and the other party tend to be able to sit down and have a conversation and work through the issues that are before you in resolving your divorce.
What is the Discovery Process in Divorce?
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One of the major processes to help parties reach a resolution through a divorce is a process called discovery. It’s important to know what those terms mean as you go through a divorce. You hear your attorneys using these words and so it’s important to ask your attorney to help you understand the process. The discovery process is really just the exchange of documents between the Buffalo divorce lawyers. That’s how it starts. Your attorney may want to see proof of an asset or a liability from the other party and the attorney’s will exchange those documents. The other aspect of discovery may be holding depositions, filing and serving subpoenas, and some other efforts to help the parties obtain information that they need in order to reach a resolution.
How is Unreported Income Calculated?
- One of the first things that happens in your divorce process is financial disclosure. The parties are going to exchange a Financial Disclosure Affidavit which you may hear your lawyer call a 236B. That document is where you and the other party are going to list all of your assets, all of your liabilities, your income, and it’s also going to list your expenses generally. Those documents are exchanged between Buffalo divorce lawyers at the very beginning of the case. If you sit down with your lawyer and it looks like something is missing in that document or you have some questions about whether or not there’s been full disclosure, your attorney can initially go to the other party’s attorney to seek documentation for an asset that may not have been listed, or a liability depending upon the case, or the court can help and provide assistance with the process of discovery where subpoenas can be issued and discovery demands can be made. The court will assist parties in exchanging the documentation that’s necessary to resolve equitable distribution of all assets and liabilities.
What is Equitable Distribution?
- The standard that the court uses is titled equitable distribution. What that generally means is a fair distribution of assets and liabilities. It may not always seem fair to the parties as they go through the process, but what the court is looking to in terms of equitable distribution is where did an asset come from, who’s funds came into obtain that asset, and then what happened to that asset through the marriage. It’s very important to know when we’re talking about how things are going to be distributed whether an asset came from before the marriage or during the marriage. You’ll hear the term separate property or marital property, and that helps the court to determine equitable distribution. The court is looking to equally divide marital assets as well as marital versus separate property liabilities.
Am I Entitled to Part of My Spouse’s Retirement Plan?
- When retirement assets are derived from a period of time throughout the marriage, they’re considered marital property. They’re subject to equitable distribution under the law. What that means is that your retirement asset or your spouse’s retirement asset for the period of time that it accrued during the marriage, it may be evenly shared between you and your spouse. Those issues do very much depend upon your specific case. It’s important to discuss the details for how long you or your spouse was employed or whether or not that retirement asset comes from a period of time prior to the marriage, and then how it’s been treated through the marriage.
How is Inheritance Treated During Divorce?
- For people who come into a divorce with inheritances, they’re concerned about what’s going to happen to that asset for a number of reasons. When you have an inheritance it has sentimental value to you, and it also has the monetary value. The court is aware of those issues. Generally, inheritances if they’re obtained before the marriage, they are treated as separate property. What that means is that that they’re not subject to distribution by the court. They would be yours to maintain.During the marriage what happens to that inheritance is very important, how that inheritance is treated throughout the marriage. If you treat it in a manner that is perceived by the court as having treated as a joint asset, it may have changed in character to become a marital asset and therefore subject to distribution. It’s very important to ask those questions when you have them at the start of proceeding so that you can get the right advice as to how to handle your inheritance and how to resolve that issue.
What Happens to Our House?
- Generally, the court wants parties to reach a resolution as to what’s going to happen to the marital residence. At the end of the divorce, either one party is going to keep the marital residence or the other, or the property can be sold. You can either reach that resolution outside of court either with the assistance of counsel or not. If you need the court’s assistance, the court can make an order as to what’s going to happen to the marital residence, if it will be kept by one of the parties or if it will be sold. If one party is going to keep the marital residence, the other party may maintain an interest in the marital residence and they may need to be what’s called bought out from that interest by the other party.
I Bought a House Prior to Marriage, what will Happen?
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People who come into a divorce with property that they have purchased prior to the marriage are always concerned about what’s going to happen to that property. Generally, as a general rule, the court would treat property that’s been obtained prior to the marriage as separate property, meaning that it’s your property and not subject to distribution between you and the other party. That does depend however on a number of factors and how that property was treated after the marriage, so it’s very important to sit down with your attorney and talk through the timeline of when an asset was obtained, what money was used to obtain the asset, and then how it’s been maintained throughout the marriage.
My Spouse is Refusing to Sell the House, What Should I do?
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It can be very difficult in a divorce process when the parties are not able to reach a resolution and that can be extremely troubling when we’re talking about major assets like a marital residence. If the parties are not able to reach a resolution as to which party is going to keep the marital residence, the court will generally order it sold and the court will require that both parties participate in the process of selling the house. You will be participating in the process of choosing the listing agent, communicating with each other either directly or through Buffalo divorce lawyers to determine a listing price and coordinating the showings, and determining how the house is ultimately sold. If one party is not participating in that process, the court can order that the other party take over the process or the court can appoint someone independent to look over the sale of the home.
My Spouse Refuses to Pay any of the Marital Bills
- Divorce can be a very vulnerable process to go through, especially financially. When one party has access to funds and the other party doesn’t or if bills have generally been paid jointly between the parties, you may need to seek court intervention to order the other party’s continued participation in paying the household expenses and perhaps the expenses for the children as well. Your attorney can either resolve that through a conversation with the other party’s attorney or a motion may need to be filed to bring that issue before the court and the court can order who’s going to pay what. At the start of a divorce along with the summons, the Notice of Automatic Orders is served and what that sets forth is that the status quo continues through the divorce process, so until issues of support have been resolved, maintenance and child support, the court expects that the bills are going to paid in the manner they were paid prior to the divorce process having started. The court will ensure that both parties are participating in that process so that the bills are paid.
Should I File a Joint Tax Return the Same Year I was Divorced?
- You really need the advice of an attorney and also an accountant. You should check with your accountant to determine what’s going to be the best resolution for you in terms of whether it be a joint filing or a separate filing. A number of factors come into play to determine that answer, and your accountant is best able to answer that question for you.In terms of how it’s resolved through your divorce is going to be up to your attorney, and it depends upon whether or not the parties can agree as to how the parties are going to file in that year. Perhaps, the court is going to order either a joint filing or a separate filing depending upon the determination. There are other issues to consider in terms of who’s going to claim the children, who’s going to be head of household, and some other determination in terms of dependencies and exemptions that need to be addressed. All of those issues will be addressed by both your accountant and your attorney.
What is Spousal Maintenance or Alimony?
Who Pays Spousal Maintenance?
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Your attorney can help guide you through running your income and the other party’s income, with specific facts and circumstances of your case, through a calculator which will give you a pretty fair estimate of what you might owe to the other party, how that might be paid, and for how long that might be paid.
Is Spousal Maintenance a Tax Deduction?
- t’s very important when you have those questions to talk to both your Buffalo divorce lawyers and then also an accountant. When parties are asking about maintenance, they’re asking about the spousal support that’s been ordered by the court or by agreement between one party to the other. Generally, that is treated as income to the party who’s receiving maintenance and it is tax deductible to the party who’s paying maintenance and that may be a factor to consider in reaching your resolution of your divorce matter.
How Long Do I Have to Pay Spousal Maintenance?
- New York State recently enacted a maintenance low which does provide for time periods for how long spousal maintenance is paid. It’s case by case specific. It depends upon how long you’ve been married and also how long you’ve been employed throughout the marriage. Your attorney can advise you as to what the calculator is going to provide for the term of your marriage.
Our Buffalo Divorce Lawyers Protect What’s Most Important
Frequently Asked Child Custody Questions
Do Courts Favor One Parent Over Another?
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People sometimes feel or adhere that the courts favor mothers in determining issues of custody and access. The only way that this may be true is if that’s been the nature of your relationship in terms of how you and the other party have divided up the child care. If one party has taken on the major responsibilities of child care, that party may maintain that role after the divorce. Generally, the court is very interested in maintaining the children’s relationship with both parties. Despite the party’s hard feelings towards each other, the children have the right to love both parents and have involved relationships with both parents. The court is looking to divide the time between the parties if the parties can’t do it themselves in a way that the children have consistent, regular, and meaningful access with both parents.
How do Courts Determine Child Custody?
- When we talk about custody we’re really talking about in New York State who has the right to make major decisions for children. Those categories are educational decisions, medical decisions, religious decisions generally. Whether you’re going to have sole custody or joint custody is the determination of whether or not those major decisions are going to be made jointly or one party is going to have the right to make that decision. Most often people are able to agree to those terms.If you’re unable to agree then you may need to run a hearing for the court to determine what’s going to be the custodial arrangement between you and the other party in terms of making decisions for the children. The standard for the court is to look at what’s going to be in the best interest of the children. Usually in that situation an attorney will be assigned to represent the children. The court is going to call an attorney for the child. You may also hear that attorney called a law guardian. They will have a say as to what they believe are the children’s position and how the custody should be resolved, and then your attorney and the other party’s attorney will also be advocating for your respective position in the matter. The court ultimately may make a decision based upon what the court determines to be in the best interest of the child.
How do Courts Determine Visitation Time?
- Sometimes when parties are not able to reach a resolution between them about how the children are going to spend time with both parents, you may need to seek court intervention. People are always very concerned at the start of the case about how the court would treat issues of where the children are going to reside. You may hear your attorney talking about access. Sometimes people also use the word visitation. Generally, they mean the same thing. They’re talking about where the children are going to reside primarily and then also how the time during the week and throughout the year is going to be split between the parents.The standard that the court is using to determine where the children are going to spend their time is the best interest of the child. The children may have a lawyer assigned to represent them through that process if the court does become involved in that determination. That attorney is often called an attorney for the child or the law guardian. They will also participate in helping the court and the parties reach a resolution of where the children are going to stay. The factors that the court’s going to be looking to are generally going to be what are the party’s work schedules, what are the children’s schedules, are they in school, are they in daycare, what types of extracurricular activities are they involved in? The court is going to be looking to what the history of the family was, which parent if either parent was more of the primary parent for the children.Generally, the court is looking to preserve what the parties did throughout the marriage moving forward. The court generally finds that stability and consistency is best for children, and that’s why they’re looking to preserve what the parties did during the marriage after the divorce. The court is always interested in making sure the children maintain a relationship with both parents through the resolution of the divorce and also keeping children safe in the resolution of a divorce. Those are the major factors in determining visitation.
What is Joint Custody?
- When we’re talking about custody in your divorce in New York State, we’re talking about who has the rights to make major decisions for the children. Generally, those decisions are the education decisions for the children, medical, and then also religious decisions. The court tends to take the position that it’s in the best interest of the children, which is the standard what the court uses to determine who should have custody, for both parties to maintain a relationship with the children at the end of the divorce.The court is generally looking to preserve the children’s right to have a continued relationship with both parents and for both parents to have the right to make decisions for the children together. The times when that may or may not be appropriate tend to depend upon whether or not the parties can communicate. If there’s a lot of conflict between the parties, it may be determined by the court that it’s in the best interest of the children for one party over the other to have sole custody. That also may be determined if one party has a mental health issue or a substance abuse issue which prevents them from participating with the other parent in being a joint custodian.
What is Shared Custody?
- When we’re talking about custody, we’re talking about the right to make major decisions for the children. Those decisions are generally education decisions, medical decisions, and religious decisions. When parties have shared custody, it can also be called joint custody. They have the ability to both participate in and make those decisions for the children. Sometimes also when we’re talking about shared custody, the attorney’s or the court may also be talking about parties who have determined to share equal time with the children. In that instance, it’s both joint custody and what’s close to a 50/50 access schedule for where the children are going to reside.
What is Sole Custody?
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People are often concerned when they hear the word custody that it’s talking about the time with the children. That’s actually usually referred to by the court as access. Sometimes you will hear it called visitation. When we’re talking about custody and the difference between joint custody and sole custody, it’s the right to make major decisions, education decisions, medical decisions, and religious decisions generally.
If one party is going to obtain sole custody, that’s usually in an instance when the parties are unable to communicate, generally if parties are not able to agree to be joint custodians and have to head through the process of litigation and through a trial to determine custody, the court may find that one party should have custody to make those major decisions. The court’s determination is looking at what’s going to be in the best interest of the child or the children. The court may determine that it’s going to shield the children from conflict and provide the children more stability and consistency to have one party making those decisions. The court will be looking to see who may be better equipped to make those decisions and also to see who’s going to be more inclusive of the other party in the children’s lives in making those decisions.
Can My Child Choose which Parent they want to Live with?
- The children do have an advocate through issues of custody and access, whether it be through a divorce or in family court. They’re going to receive an attorney assigned to represent them. The court calls that attorney the attorney for the child. You may also hear that attorney called the law guardian.That attorney is going to be your child’s voice through the process. That attorney’s obligation is to advocate for the child’s stated position. With a very young child, that attorney may take the position that they are going to substitute their own judgment as to what might be in the best interest of the child. With an older child who is able to vocalize a position, the attorney’s going to advocate for that position. The court then is going to make a determination as to what’s in the best interest of the child. The court may agree with the position of the attorney for the child or not. That will be based upon a number of factors.
My Child’s Other Parent is Refusing Visitation, What Should I do?
- It can be very upsetting when through the divorce or custody process it becomes difficult to obtain access to your children. People who come to me in that situation are very upset, very concerned about what their rights are and what the court might do to help them in that situation. If the divorce is ongoing or if the matter is resolved and you need to file a petition with the court, your attorney can put together papers which will seek court intervention to determine why the child is not seeing one of the parents and what needs to be done in order to fix that situation. The court always is looking to preserve party’s relationships with their parents, but they’re also looking to keep children safe. There’s always in that situation going to be an attorney assigned to represent the child. It’s called an Attorney for the Child. You may also hear that attorney called a Law Guardian. That attorney is going to help the court to determine what’s going on with the child, why there’s a breakdown in the relationship if it is between one parent and the child, or if the other parent is creating an alienation in the relationship. Sometimes social workers, or psychiatrists, psychologists can become involved to evaluate the parties or the child and to determine if there’s anything that needs to be done outside of the courts to help with the situation.
How Can I Modify a Child Custody Order?
- You may or may not be entitled to a modification of a prior order. The court’s going to be looking to see whether or not there’s been a change in circumstances since the prior order, and then also if the modification is in the best interest of the children. Your attorney will need to file either a petition with the family court or a motion with the supreme court, depending upon which court may have jurisdiction in your matter or where your attorney thinks it might be in your best interest to file. From there, there are going to be court appearances for you and the other party through your Buffalo divorce lawyers or by the court’s order to determine whether or not there’s going to be a modification.
What is Parenting Time?
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Parents are always very concerned about losing time with their children and having as much time as they can after the divorce process with their children. When determining how the children’s time is going to be shared, that may be done outside of court between your Buffalo divorce lawyers. You and the other party, with the assistance of your attorney, may be able to, by looking at the party’s respective work schedules and the children’s schedules, obtain a schedule which will offer both parents meaningful consistent access with the children. If the court’s going to be involved, an attorney is going to be assigned to represent the children in most cases. That attorney is going to be called an Attorney for the Child or sometimes called a Law Guardian and that attorney is going to help the parties and the parties’ attorneys reach a resolution as to how to share the time. The court is looking to what’s in the best interest of the children and to divide the time in a way that the children have consistency and adequate time with both of their parents.
How can I Adjust a Parenting Time Order?
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Sometimes when parties reach a resolution either by agreement or through court order of how time is going to be shared between the parties with the children, it doesn’t work as well as the parties might have hoped. You can obtain a modification of an order of custody and visitation, but the standard before the court is whether or not there has been a change in circumstances. In your specific case you should sit down with a lawyer, talk about what’s happened since the previous order, and why you feel there needs to be a change. You may be entitled to a modification.
Can I Move to Another State if I Have Sole Custody?
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Relocation can be a very confusing issue and people always have questions about whether or not they have the right to relocate when they have joint custody or sole custody and depending upon their respective access schedules with the children. In New York State, whether you have sole custody or joint custody, you have to either obtain written agreement from the other party or a court order in order to relocate. If you have sole custody and you choose to relocate without the other party’s agreement, you could be treated by the court as having acted in bad faith and you ultimately could be ordered back to New York State to have the issue resolved by the court. If you’re considering relocation, it’s very important to sit down with our Buffalo divorce lawyers initially and to make a plan as to how to seek relocation through the courts.
Who can Claim the Children on their Taxes?
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It’s important to ask your questions as they relate to your divorce and your tax implications to an attorney and also to an accountant. That’s one of the issues that your attorney is going to help resolve through the divorce process, who can claim the children and in what years. If you’re not able to reach a resolution in that matter, the court does not have jurisdiction to determine that issue.
Neither the family court nor the supreme court will be able to make that determination for you. You and the other party will have to reach a resolution of that issue between you. Generally, parties tend to agree that if there is child support being paid and if that child support is current, then both parties would be able to share the tax dependents claim. There’s a form that needs to be filled out by both parties in order to effectuate the sharing of those claims. You should definitely talk to your attorney about how to share the tax dependency, that that form is filled out with the IRS.
Frequently Asked Child Support Questions
How does the Court Determine Child Support?
- The Child Support Standards Act looks at the respective incomes of the parties and how those incomes relate to each other and then how many children the parties have. There’s a calculator that’s going to provide how much support is going to be paid. The Child Support Standards Act also provides for deviation from those amounts based upon a long list of certain factors. It’s important to sit down with your attorney and ask the specific questions in your case. Your attorney will be able to advise you a range of what you might expect to either pay or receive in child support.
How Long is Child Support Paid?
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You may have heard the term emancipation from either your attorney or the court. That term is used by the court to determine how long child support is going to be paid. Child support is generally paid under New York State law until a child has been deemed emancipated. A child is emancipated under New York State law when they’ve reached 21 or if they’re 18 and have entered the military full time, if they have gotten married, or if they are living separate and apart from the parents and are self-supporting. That may be a discretionary issue for the court to determine whether or not an emancipation has actually occurred, so it’s important to sit down with your attorney and ask the questions that are specific to your case.
How can I Collect Child Support if it’s not Being Paid?
- It’s very difficult when court orders are in place and you need to seek enforcement from the court. When it comes to child support, you can seek enforcement in a couple different ways. If child support is paid through the Child Support Collection Unit, you may be able to obtain enforcement through the unit themselves. You can call the Child Support Collection Unit who is handling your case. They may be able to obtain an Income Deduction Order against the other party and they may be able to take collection actions in terms of taking the other parties tax refunds, putting liens against vehicles, and taking the other parties driver’s license in an effort to obtain compliance with the child support order.If your child support order is not payable through the Child Support Collection Unit or if those means are not working, you can also at the same time seek intervention from the court. You would be filing through your attorney a petition called an Enforcement Petition and the court generally is going to enforce the court’s own orders. If you have an existing order of child support, the other party would have to bring a defense as to why they have not been paying the support. The petition you’ll be filing is going to be seeking enforcement and so the other party is going to be asked to comply if they’re not able to give a reason as to why there has not been compliance. It has to be a substantial reason that the court finds as reasonable to make it such that enforcement isn’t required. Your attorney may also decide to file a Violation Petition on your behalf to ask the court to find the other party has willfully violated the order of the court. In that case, there can be penalties under the law for having failed to comply with a court order.
Are there Penalties for not Paying Child Support?
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If you’ve been served with a petition claiming that enforcement needs to be made of an order of child support or there’s a violation that’s occurred of an order of child support, you need to immediately meet with an attorney to determine how to respond. You may be able to bring a defense against that petition if there’s been some involuntary job loss or some reason why you’ve not been able to comply with your child support order that was not at your own fault or an involuntary failure to pay. If there is such an involuntary failure to pay, you may not be held responsible for the amounts that you owe, but otherwise, you’re more likely going to be working out with the other party’s attorney or through the court a way to repay those funds and to make sure that the support order is complied with.
Is Child Support Tax Deductible?
- It’s very important to seek both the advice of an attorney and also the advice of an accountant when you have questions about how your court orders affect your taxes. Generally, child support is not taxable or considered a tax deduction by the court and also by the IRS. Child support needs to be declared through your tax filing, but it isn’t going to be treated as a deductible to you, the payer, or as income to the party receiving the payments.
How can I Adjust My Child Support?
- When there’s a change in custody and access, that may also trigger a change in child support orders. When there’s been a change in custody, people have questions for me about whether or not that’s going to affect orders of child support. If a child no longer primarily resides with the party who has been receiving support, that would be considered a substantial change in circumstances under the Child Support Standards Act to provide for a modification of support. It would certainly depend upon the specific facts and circumstances of your case. It’s very important to sit down with a lawyer and ask the questions relating to your own case.
Can I Modify Child Support Due to Job Loss?
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When child support orders are in place, it’s important to seek court intervention if you’re looking to change that child support order. The courts generally expect compliance with orders, so if you’re looking to modify an order, you need to bring an application before the court. It’s very important to do so as soon as there’s been a change in your income. If you lose your job, you and your attorney will discuss whether or not you are able to file a Petition for Modification of your child support obligation. It will depend upon whether or not your job loss is related to voluntary action or involuntary action. If the court finds that you are at fault for losing your job, you may not be entitled to a modification. If there’s been an involuntary layoff, you may be entitled to modification of support and it will depend upon the specific facts and circumstances in your case.
Buffalo Divorce Lawyers and Family Law Attorneys
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