I didn’t do anything wrong — why am I being financially punished in divorce?
Recently I had a couple for mediation with an issue that comes up a lot. For whatever reasons, Mom is moving out but the parents are going to share the time with the children equally. Dad wants to stay in the house, which he really can’t afford. His solution is to pay Mon some small amount of child support and spousal support — maybe 10% of what the formulas would provide. His reasoning is understandable, but is not really relevant.
Mom (or Dad) Had an Affair. Shouldn’t she (or he) just get out with nothing?
Mom has had an affair, or she is just determined to live a life without her husband — divorce is the solution in her mind to whatever it is that is wrong with the marriage. Dad’s view is s — “I don’t want this. It’s your fault; I didn’t do anything wrong.” And therefore — “I shouldn’t have to suffer any inconvenience or reduction in my lifestyle.” “You want to go, go ahead, but I am not paying for it.” Underlying that is the simple reality — after Dad prepares his budget, carrying all the expenses of the house, there is nothing left to pay Mom. His attitude is: “You want to leave, you can suffer the consequences.”
Support Issues and Fault for the Divorce Are Completely Separate.
The problem with this approach is that is does not take into account what the New York divorce laws and the provisions for the custody and support of children provide. Certainly, for any judge in a Nassau or Suffolk court, the welfare of the children comes first. Any Long Island court is going to look at these issues from the best interests of the children. Dad staying in the house, and not paying Mom any support for the children so that he can afford the house, is not necessarily what is in the best interests of the children. Children need two loving and involved parents. In a joint custody arrangement each parent has to have housing that is at least minimally acceptable. Throwing Mom on the street, since she wanted to leave, is not a solution that considers the children.
From the Court’s perspective, supposed fault by one parent is just not relevant, unless it directly impacts the welfare of the children. Exposing children to a registered sex offender, or a drug addict, or some other extreme example of inappropriate behavior, might be an issue. Moving on to another intimate relationship, and ending a marriage because of that, is not.
Who Pays Legal Fees in Divorce Mediation?: Courts Rarely Award Less Child Support than the Formula Amount.
On an even more basic level, the courts are very unlikely to vary the basic child support obligation. Certainly, the most common complaint from the person paying child support is “I can’t afford that.” It’s probably true, but entirely irrelevant. While you can vary virtually anything in a mediated divorce, it takes both parties’ agreement. If one wants to vary the child support payment, but the other doesn’t agree, you are stuck with the formula. That is almost assuredly what any court would do.
Yes, you have a great deal of flexibility in mediation, but the laws and courts of the State of New York are still there in the background to serve as a basis for making decisions. Fault in ending the marriage is just not an issue when it comes to children, and support looks to the best interest of the children, not each of the parents.
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