Legal Question in Family Law in New York
Divorce/legal separation
My wife and I were legally separated in April 1999. Since we werent on good financial ground she agreed to accept less than the guidelines for child support. ( Law says I should give $1175 a month, I have been giving $950 a month ) I took 75% of our debt as a trade off. I now am ready to serve her with divorce papers. I have stuck to every stipluation in our legal separation agreement. However, since I am now in another relationship, my wife says 1) she will never sign any divorce papers and 2) the money which I give her every month is not enough and unacceptable. Does she have me over a barrel or is that legal separation agreement going to ''stand pat'' ?
2 Answers from Attorneys
Re: Divorce/legal separation
Most IAS-Divorce Judges treat the filing of
a divorce as a change of circumstance permitting
the review of all terms of the separation
agreement. Thus, a court could look at
the agreement and prospectively alter your
obligations. This should include both
the Child Support and Debt Allocation. But
it should be only for the future, with the
critical date being the date that the Summons
is filed in the Court.
The IAS-Divorce court is also able to review
all agreements to determine that they were
fair and equitable at the time they were
entered into and are not now unconsciounable
Hence, under this standard, a court is
empowered to review the agreements and alter
them.
Courts, however, are reluctant to do so. This
is because they do not look to make work. If there are
sound reasons for the agreement, some courts
will not change them
This can literally be a luck of the draw in
terms of what Judge you end up being assigned
to in the divorce action, an act over which
no one has any control.
There really should be no question though that she
cannot create arrears and ask for the additional
monies from April, 1999. This should be limited
to the time from the filing of the divorce action, unless
there was already a Court filing which has been
pending the entire time.
Re: Divorce/legal separation
The agreement will only hold up, if both parties continue to agree. You need to get a good attorney to assist you in this matter. Your soon-to-be ex-wife can hold you up longer than necessary. An experienced attorney will know how to "force" the situation to get it resolved more quickly.