Monday, October 29, 2012

It is written in my husbands divorce papers that his ex will get 1/2 his pension for the time they were married. Is this a qdro?

Q: She is remarried. There are no special papers for this. It is written in the divorce papers. This qdro sounds like it's something that has to be written up in seperate papers. 

David Bliven’s answer: A "QDRO" (or Qualified Domestic Relations Order) is indeed a separate document & is similar to a garnishment on the pension.

The child support i'm paying is more then what im bringing home in my net and the courts dont care about my cost of living

Q: i had a kidney removed due to renal cancer, i was out of work for 6months and when i went back to work i had to pay arrears and my base amount of support was increased im now unable to pay my bills on time and im facing eviction because im 2months behind in rent
David Bliven’s answer: The question is whether you made an application to lower the support at or just after the time of your surgery. The Court only has authority to lower support retroactive to the date you filed. That said, if your income is lower than it was before the surgery, this MAY be a basis to lower the support.

Child turned 21 last month. Why am I still being garnished?:

Q:   I called the payroll manager at work and she states that she's yet to receive an order to stop garnishing my salary, although as previously mentioned my daughter turned 21 last month. Will it eventually stop or do I have to petition the court? What do I bring? I don't think I have the order anymore since it was years ago and I've moved several times. And if the child is over 21, then why do I need to bring anything? Do I get my money back? Thanks in advance.

David Bliven’s answer: Do you have another child on the order? If the order was unallocated, this may be a reason the order is continuing. If not, then this may be an error on SCU's part and thus you need to immediately file an order to show cause with Family Court & ask for immediate suspension of the order pending the court date. Then if the Magistrate/Judge suspends the order, give a copy of the order to SCU & your payroll.   

Monday, October 22, 2012

Can my 18 year old son sue his father for child support?

Q:  My son want to sue his father for child support but I don't have child support case. 

David Bliven’s answer: Why is your son suing & not you? If he is living on his own, then whether he can collect child support from the father will largely depend on how he's supporting himself (i.e., whether he's financially emancipated).

Signed a child birth certificate its not mine and was born in the marriage want to fix his paper to be mine what i have to do?

Q:   This happened in the dominican Republic 

David Bliven’s answer: If the birth certificate is a D.R. certificate, you may need to amend it there. You may always try to have it registered first with Westchester County, get them to issue a new birth certificate and then file for a paternity proceeding. I would suggest to do this promptly as the longer you wait, the more likely it is that you'll be precluded from removing your name or denying paternity.

Wife and i are working on a separation, but i am dating. We both have kids. Can she harm me legally for this?

Q: Wife and i have a 3mo. old and 3 year old. i am dating seriously now, and was accused of cheating with this person but that only began after we decided the marriage was done. GF has a 5 year old. GF splits rent with me so i could afford to pay for a place for the wife to live. i have other weekend custody (of the 3 yr old, baby is breastfeeding) and see the kids 2x a week for a couple hours. Wife refuses to let me bring my 3 year old to my place if my GF is there with or without her kid. Nothing illegal is going on and wouldnt expose kids to a "new relationship" yet just as friends (i would sleep on couch). Can she legally come at me if i proceed? my relationship with the gf is very serious, and neither of us doing anything illegal or would harm anyone or endager the kids. thanks! 

David Bliven’s answer:    Now-a-days, many Judges are quite liberally-minded about the fact that if parties have been physically separated for some degree of time, they are bound to "meet someone new." I do agree "adultery" as a crime is still on the books, but it is rarely if ever prosecuted. That said, to protect yourself further, I'd highly suggest you file for divorce & if visitation is still in dispute, get a Judge assigned to the case.

I won Avvo's "Top Contributor" Award for 2012

My daughter is 18 & is living at college. Is there a way that my child support payment can go directly to my daughter?

Q: I'm paying about 1,200 a month on child support, and my daughters mother only sends her a $100 a month, so basically support money is being spent by the mother, and not on daughters needs. 

David Bliven’s answer: You may petition for not only a credit of the child support going to Room & Board, but may also petition the court to lower the amount of basic support while the child is away at school, under the theory that the Mother's expenses to maintain the household are presumably less than if the child was there. To make that argument successfully, I'd highly sugegst to at least consult with - if not hire - a Bronx Family Law attorney.

Son's father filed for paternity from prison

Q: My sons father is in prison and wants his name on his birth certificate can and will he get what he wants and do i have to worry: he will be in prison for 25 years. 

David Bliven’s answer: I agree that it's possible for him to file a paternity petition - if he does and is successful in proving his paternity (usually done via a DNA test) then he'll also very likely be successful in getting his name added to the birth certificate. That said, even though he's in jail, it's still possible to get the court to enter a minimum child support order against him (usually $25-50 per month), which may not sound like alot now, but if the child's an infant it could result in a judgment against him of over $6,000 not including interest when he gets out.

Is child support really based on 17% of your salary?

Q: I moved to Florida about a year ago and not making the same amount , I have filed a modification of child support but was ignored, I've submitted financial document ion and still was not lowered, now I'm forced to pay an amount that I don't even make in a month.can you help.

David Bliven’s answer: If you either voluntarily quit your last job or were fired due to misconduct, then the Court will generally not lower your support even if your income is now reduced. And it is your burden to prove (through documentary evidence) that you were not fired or did not quit. If you can show this, then you would need to review what proof you submitted along with the Court decision with a Bronx Family Law attorney.

Wednesday, October 17, 2012

What legal actions can a father take when the child's mother runs away with the child & files for child support ?

Q:  I have a 9 yr old son whose mother ran off to another state when he was 1 month old, then I finally got to see him at the age of 2 for 1 Month. Since then She will not disclose her location nor let me keep in touch with my son. Yet, she went to court and filed for child support which i have been paying for the past 8/9 years. I asked the child support judge to advise me how can I see my son or stop the child support payments since I have not seen my son & tried reaching out to her through her family to no avail. The Court's best answer was to go to the last state she is known to reside in and deal with their court system since my state cannot assist me. I haven't seen my son although I would truly love to but I am tired of this fight that the Courts are unwilling to help me. Advice?

David Bliven’s answer: The ultimate problem is that the state where the child is now living in probably has jurisdiction to hear any custody or visitation cases. If a child has been residing in a particular state for more than 1 year, then generally that state has such jurisdiction. Thus, I agree that hiring a private investigator at this point seems to be your best shot. First find her, then enforce your visitation rights.

How do I speed up an uncontested divorce in Bronx, NY.:

Q: Have transcrpts since Feb 2012. Want to remarry, is there a form to speed up the process so I can proceed with my life. My x got everything plus my son, I have not seen him for 3 yrs. Every time I call the court they say 3 months. I really would like to have peace. Can you help me I have no $ but I have a heart. I plan to remarry by Dec 15, 2012. Thank you 

David Bliven’s answer: Unfortunately, the only effective way to speed up the process is to file an order to show cause (usually done via an attorney) attaching the wedding invite (among other supporting documentation). Usually such a motion is filed by an attorney however. Short of that you can always try going into the Matrimonial Clerk's Office personally with a copy of the wedding invite & beg for mercy.

I paid for braces 3 yrs ago & Daughter never wore retainer and now her Bottom teeth are crooked. Mom wants me to pay again for braces I'n 5300 range.

Q:  Single dad. Daughter does not speak to me. I live I'n ny - am I liable for this again. It is a non emergency situation and I am responsible for 3/4 of medical. I am refusing
Asked about 2 hours ago in Child Custody

David Bliven’s answer: First, I would need to review any order or agreement you & the mother have on the child support issue to see whether it specifically provides that you pay for same. My question is why, if your daughter has such enormous expenses, either one of you don't look into dental insurance?

Monday, October 15, 2012

What form do I use to petition the court to relocate with minor children (New York)?

Q: My ex-husband and I are recently divorced and the divorce decree states that I cannot move more than 30 miles away. I have been a stay at home mom for almost the entire length of the marriage (7 years) and our children are ages 7 and 3. I'm having trouble finding work, and I have no support or resources here in New York. I want to move back to Kentucky where both my parents and my ex's reside. How do I petition the court in order to do so, and what is the best way to make my case?

A: David Bliven's Answer: General court forms may be found at the Clerk's office or on the NYS Court System's website ( That said, a relocation proceeding is a difficult one to present. If part of your reason for relocating is difficulty in finding work, then I highly advise to start keeping documentary proof of your job search (example: print-outs of submissions on as you may ultimately need to prove your "diligent" job search at trial.

I want to re-enforce a verbal agreement.What can I do to keep it the way it has always been for the past 7yrs.?

Q: 7yrs. ago in front of a judge a verbal agreement between myself and my son's legal guaurdian was made where I would have visits every other Saturday.Now without reason or warning my son's legal guardian cut it down to 1 visit every 2 months.This just can't be.There has never been anything wrong in the past for his legal guardian to make such a drastic and bad change.I want my visits to stay as it always has been. 

David Bliven’s answer: When you say "verbal agreement in front of a Judge," was the verbal agreement incorporated into an order? This does make a difference in how you proceed, as if it was incorporated into an order you would file a "violation petition." If not, then you would file a "petition for visitation." Moreover, when you say "legal guardian," who is it that the child is residing with (& why)?

Before my ex and i broke up due to her giving me a restraining order, she added her fathers netflix account to my xbox - do I risk arrest?

Q: Before my ex and i broke up due to her giving me a restraining order, she added her fathers netflix account to my xbox before the court date. vie since then moved and allowed my family to use my xbox. if they are still using it will i get arrested? is that considered violation even though no contact was made and my ex herself assigned the account and never took it off. 

David Bliven’s answer: If the restraining order contains a "no contact" provision and/or prohibits "3d party contact," then you certainly run a risk of violating the order & thus being arrested. Why risk it? I highly suggest to remove the account & open your own.

My daughter is 17 but is not going to college. She hasn't spoke to me in a year. Can I stop child support?

Q: Her mom raised her not to listen to me when I: Would discipline her. I have no control of her actions. Here mom has alienated my relationship. In court my daughter stated that she wants nothing to do with me. Her mom uses the money for her personal gain. My daughter runs around with the wrong people doing drugs sleeping over boys houses ect. Can stop payment and claim her to be imancipated at 18 ? 

David Bliven’s answer:    You need to file a petition to terminate support based on emancipation - you cannot do so on your own. Your argument in court would be that your daughter is constructively emancipated as she is unjustifiably refusing a relationship with you. A word of caution, however - this is a difficult argument to make & you'll probably be unsuccessful without the services of an experienced attorney.

Saturday, October 13, 2012

What should i do?

Q:  I have a restraining order placed by my ex. my family is using their netflix account. am i in violation or am i subject to arrest ? 

David Bliven’s answer: At least during the time of the restraining order, it makes sense for them to establish their own account.

How is child support effected if custodial parent is receiving SSDI and both children received a one lump sum?

Q: I am the custodial parent of two 18 yr. old disabled children. I have not applied for SSI for them yet. I recently began to receive SSDI and both of my children received a lump sum of auxiliary benefits. How does this effect their child support and what bearings does it have on each parent? 

David Bliven’s answer: There was a case a while back from the highest Court in this state (Ct. of Appeals), Graby v. Graby, stating that receipt of the extra benefit is not a substitute for payment of child support from the noncustodial parent. Moreover, unless what you receive combined with your income increases the combined parental income above $136,000, then it is extremely unlikely to effect what is paid.

My ex broke into my facebook account and posted lies and said demoralizing things. Is this a breach of the divorce agreement?

Q: I have 5 months left of alimony to pay. Should I stop paying her? 

David Bliven’s answer: First, if the divorce agreement required you to pay, you should definitely NOT stop paying. Second, you should gather the actual proof (from Facebook) that she hacked your account. If she did so, then this may be a basis for a restraining order.

Friday, October 12, 2012

Question re: Child protective service

Q: we are being investigated by child services for false allegations that we are cocaine addicts and physically abuse my 10yr old daughter we have no idea where this is coming from. the case worker wants all 4 adults that live in the house to take drug tests but my lawyer is telling me to refuse visitations and ignore calls from the case worker and to keep putting off the drug test cause i smoked pot 2 weeks ago and that it will come out positive . so my question to u is should i avoid the case worker at all cause i dont feel good about this at all i feel like im putting myself in deeper with child services . the case worker said that if any comes out positive that we will be sent to a program. please help im sooooo confused. 

David Bliven’s answer: At this point, if those are the allegations, they may be just trying to get additional evidence on you to enhance their case. They are also not obligated to tell you the truth. In other words, while they may say all they're going to do is send you to a drug rehab if you test positive, they're not bound by that representation (and thus may refer the case to Family Court for prosecution).

Can you still get spousal support from your husband if he changes from a divorce to a legal separation?

Q: My husband and I have been married for 39 years. He was going for a divorce and now wants a legal separtion. What are the differences between legal separtion and divorce when it comes to things we both own like houses and automobiles and other things we own and spousal support.
Asked 1 day ago in Alimony

David Bliven’s answer: Generally "legal separation" entails a separation agrement, which is a document negotiated between you & your husband. Thus, the terms of the agreement, including payment of spousal support, is subject to agreement. In a divorce, an actual court case is filed. Thus, while generally the parties still attempt to negotiate a settement agreement, one of the main differences is that if an agreement cannot be reached, you can get a Judge involved to resolve the disputed issues.

Wednesday, October 10, 2012

Can my husband get half of my workman's comp case if we are getting divorced?

Q: The money I received for settlement of my workman's comp case is all ready spent. I live in New York. The money went into my account because we don't have the same bank accounts. My husband and I spent it together on things for the house. Does he still have rights to half of it? 
David Bliven’s answer: It is correct that, generally, only assets which currently exist are divisable in a divorce case. Thus, if the money is gone, then there is no claim he'd have. It would have been unlikely he'd have a claim to it anyway, as usually compensation for personal injuries are considered one's separate property so long as the funds remain segregated in a separate (i.e., not joint) account.

What happens when non custodial parent misses court day for visitation?

Q: my friend took his son mother to court but he miss the court day thinkin that was the next day what can he do? 
David Bliven’s answer: If it was not hard to serve the mother, then he can simply re-file & re-serve his petition (assuming it was dismissed). If it was difficult to serve the mother, or he thinks it will be hard to serve her again, his other option is to file a motion to vacate his default, explaining the circumstances of his failure to appear along with stating a valid basis for his petition.

If someone has an order of protection against me and this is my first time, will it be hard for me to find a job after?:

Q: This person has a temporary order of protection on me. 

David Bliven’s answer: Preliminarily, I disagree with the notion that temporary orders of protection will "not show up on any computer." Pursuant to NY Executive Law Sec. 221-a, even "temporary orders of protection" are required to be placed in the "Order of Protection Registry." That said, the Registry is primarily for court & law enforcement use; generally employers or potential employers cannot access this Registry.

Saturday, October 6, 2012

My son's father refuses to pay his child support and is now chronically behind in payments. What are my options?

Q: We have an upcoming court date in New York, how can I make sure that his pay is garnished for past and future payments and have him violated for blatantly refusing to pay? He has told me he wasn't going to pay and that I could see what I get back if they garnish his tax return.

David Bliven’s answer: Well, they won't "garnish" his tax return (solely), they'll garnish his wages, so long as he has an on-the-books job. Your best bet is to also have the support paid through Support Collection Unit, who can seize any tax refund automatically.

Are there any lawyers who will take payment after divorce is settled?

Q: I am a stay at home Mom and I have real estate that I am selling and that would be my means of paying for a lawyer right now I do not have the funds to pay for a retainer..any help would be appreciated 

David Bliven’s answer: I, for one, would consider working out a payment plan. That said, I strongly disagree with any suggestion that an attorney could work out a "contingency plan" with you. Such arrangements are unlawful for attorneys in this field & have been for a long time.

Can acs take my child away if i test positive on a drug test do to an investigation tours me for false claims of child abuse?

Q: i was visited on 10/05/12 by child protective services because someone claimed that my husband and i plus more adults living in the house hold are using cocaine like addicts and that my husband physically abuses our child . of course we are mortified by this news and even more confused as to where it came from. it will eventually be obvious to the case worker that our child is not being abused but she wants all 4 of us which is my mom and her husband as well to take drug test. i am very willing to comply with all protocol but may test positive for marijuana and would like to know if they can take my child away do to this result? plus any other advice u can give pertaining to my case i would gladly appreciate. the child protective agent interviewed us on 10/05/12 . 

David Bliven’s answer: First, it is possible ACS can take your child away for a positive test. It then becomes a difference as to whether that is right or not, based on the law as well as the particular facts in your case. If there is no other indication that the child is being abused or neglected & you feel you MAY test positive, then it may be prudent to refuse to take the test, explaining that you would like to consult a lawyer first before doing so. I then highly advise you to schedule a consultation with a Family Law attorney to further discuss the situation.

Tuesday, October 2, 2012

My ex filed a violation of Custody and Visitation in NYS. Clarification of the Visitation and Custody still possible?

Q: My ex claims the seven days of summer vacation start the first day of my scheduled visitation. The Custody and Visitation paperwork states that I have seven days of vacation with my daughter. It does not specify that it includes my scheduled weekend. I took my vacation starting after my scheduled weekend visitation and now my ex has filed a violation. My ex has been very difficult to work with. He has scheduled events for our child during my parenting time and allowed me only 3 hours during holidays my child is scheduled to be with me (pick up and drop off is not specified in the order for holidays) Can I file for clarification of the order even if the violation already has been filed?

David Bliven’s answer: Indeed, it is highly advisable you should file a cross-application for modification. Obviously the terms of the original order need to be clarified & that can really only be effectively done on a modification application.

Can child support order be changed from state established to state where kids live?

Q: I was divorced in Ct in 2002 and child support was established in 2004,the same year I moved with my children to Ny. We have lived here since...can orders be changed to Ny?

David Bliven’s answer: In what state does the support obligor live, in NY or CT? If the support obligor still lives in CT, then any modification/enforcement must generally be done in CT. That said, there may be a different basis for jurisdiction in this state over the support obligor, so it may be worth it to have a follow-up consultation with a Family Law attorney.

Self-Insured Health Insurance Plan - QMCSO:

Q: Are there procedures (laws) that a self-insured health insurance plan must follow regarding implementation of a QMCSO. After the QMCSO is implemented, are there procedures that must be followed as well? I am the alternate recipient (non-custodial parent who is the contract holder of the insurance policy is not cooperating). What specialty type of lawyer can assist me with this?

David Bliven’s answer: If your health insurance company was duly served with the QMSO and refuses to issue coverage for the child(ren), then prior to filing a contempt application I would advise to inquire what their reasons are for refusing to abide by the order. Ultimately you may need to file an application for contempt in the court which issued the order.