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Friday, May 2, 2014

I am a U.S. Lawful Permanent Resident – Can My Green Card Be Taken Away?

Most of our clients are well aware that the process of obtaining a green card through a U.S. employer or a U.S. relative can take several months to several years. Because of the lengthy processing times, it is typically a cause for much celebration once a foreign national receives the green card and becomes a lawful permanent resident (LPR).

Many lawful permanent residents think that once they receive their green card, their responsibilities are over and they do not need to worry about their immigration status in the United States ever again. Unfortunately, that is not exactly the case. When a foreign national becomes an LPR, the national does enjoy the unrestricted rights to live, work, and travel in and outside of the U.S. without the need for obtaining a visa. However, becoming an LPR also subjects the foreign national to many critical responsibilities. If the LPR fails to fulfill these responsibilities, the U.S. government can take away the LPR’s green card and permanent residence.

Our offices in New York help LPRs fulfill their responsibilities and maintain their permanent residence. We are happy to provide these services to clients all over the country.

What are an LPR’s Responsibilities?

When a foreign national becomes an LPR, the national must make sure to pay taxes on all income earned in the United States. The responsibility to report income and pay taxes rests wholly on the LPR and the U.S. government takes this responsibility very, very seriously. Additionally, it is also the responsibility of the LPR to refrain from voting in U.S. elections. Only U.S. citizens may vote in elections and voting unlawfully is considered a very serious crime in the United States.

Moreover, it is also the LPR’s responsibility to actually live and reside in the United States. The failure to meet this responsibility is one of the most frequently cited reasons why LPRs lose their green cards, because many LPRs will spend several months to several years outside of the country and will not maintain ties to the U.S. or apply for a re-entry permit. Upon trying to re-enter the country after such a long absence, the immigration officers feel that these LPRs have abandoned their permanent residency and do not allow the LPRs to enter.

If you are an LPR and you need to travel outside of the U.S. for a period of six months or longer, contact our Brooklyn or New York office and speak to one of our skilled attorneys who can explain how you can apply for a re-entry permit and how you can maintain your permanent residency.

 

 

 


Thursday, May 1, 2014

Failure to Follow Brooklyn Child Custody Orders Can Result in Court Sanctions

Parents who are separating or divorcing often turn to the courts to help them establish a parenting time plan that is both fair to the parents and beneficial for the children.

Unfortunately, our Brooklyn child custody attorneys have seen cases where some parents have used children as a weapon against the other parent. This can backfire, though, because family law judges tend to treat these sort of actions with disdain.

This is what happened recently in the case of Shindell v. Shindell, reviewed by the Wyoming Supreme Court. Although this was an out-of-state case, it's a good example of the sanctions judges may place on parents who fail to comply with child custody orders.

According to court records, the parents divorced in 2004, and the mother was given primary residential custody of their two daughters. Over the years, the father filed numerous complaints against the mother for failure to comply with custody orders. The district court responded by issuing specific orders to the mother and demanding her compliance.

Then in 2012, the father moved to Indiana and remarried. He attempted to arrange for his daughters to fly to his home to spend spring break. However, the mother learned that the father had pets in the home, and was concerned for the health of their oldest daughter, who suffered from severe asthma. She consulted with a doctor, who reportedly advised that the girl not be exposed to those conditions. Thus, she did not put either girl on a plane to visit their father. The two also didn't visit their dad during the summer, although he was entitled to summer visitation via the court order.

In August, the father filed a motion for order to show cause why the mother should not be held in contempt of court for refusing to comply with the communication and visitation decree. A hearing was held, and the mother presented evidence of the daughter's health risk in visiting their father. However, there was also evidence she had violated court orders by refusing to facilitate communication between the girls and their father and also failing to notify and include the father in decisions regarding the girl's education, medical care and other matters.

For example, she enrolled the girls in a new school without consulting the father.

As a result, the district court found the mother in contempt of court. For this, the court ordered that the mother:

  • Pay for plane tickets for the girls to see their father during the following winter break and spring break;
  • Ensure there was unfettered communication between the girls and their dad;
  • Pay the father's attorney's fees and court costs, as well as pay the costs for the guardian ad litem.

The mother subsequently appealed that ruling, but it was upheld by the state supreme court. The court determined that the mother was thoroughly aware of her responsibilities, and chose to ignore them. Regarding the issue of her daughter's health, the court deemed that it was a legitimate concern, but rather than simply ignore the order, she had a responsibility to seek a modification from the court.

The mother had attempted to argue that the court failed to consider the girls' preferences, as she indicated they did not want to visit their father. However, she did not make them available for testimony, saying she did not want to have them involved. For this reason, the high court ruled that the lower court didn't abuse its discretion in failing to consider it. 

The bottom line is that not complying with orders of the court can result in serious consequences. If you believe a modification is in order or want help in enforcing the order that currently is in place, it's best to consult with an experienced lawyer. 

Those looking for help with New York City child custody disputes, should call our offices at (718) 864-2011.


Wednesday, April 23, 2014

Contested Divorce in Manhattan Results in Reduced Divorce Awards

Our New York City uncontested divorce lawyers know that while it can sometimes be difficult to get on the same page with your soon-to-be-ex, there is sometimes much to be said for the benefits of compromise.

This was illustrated recently by a long-running, high-profile, bitterly contentious Manhattan divorce involving an attorney at a well-known law firm and his wife.

The New York Daily News reports that a judge overseeing the divorce proceedings scolded the wife, saying she had "bit the hand that fed her" by initiating public attacks against her husband during the case. In doing so, the judge found, she had tangibly decreased the value of his partnership with his employer, and therefore was stripped of the majority of her $2.5 million divorce settlement.

The two parties had aggressively fought one another for years, and, according to the judge, had both demonstrated behavior that was both uncooperative, troubling and offensive. While in court, they shouted at one another, made inappropriate comments and gestures to each other and sometimes each ran out into the hallway to scream it out in the middle of the proceedings.

The pair married in January 1988. They share two children together, ages 19 and 15.

They would later say they were "never happy" together, but they didn't formally split up until 2007, when they were both placed under arrest for domestic violence of each other. The wife, a stay-at-home mother, later successfully obtained an order of protection barring the husband for their home on E. 78th Street.

The allegations of abuse were detailed in several media reports, but the criminal charges were later dropped.

However, the couple was in the news again in 2011 when, still enduring the divorce, the wife complained that her husband had refused to pay $12,000 for a hearing aid for their daughter, and yet had just purchased an engagement ring worth well over $200,000 for his Playboy playmate fiancee. The fiancee later broke off the relationship.

The judge clarified that those earlier reports were misleading; the daughter had already received hearing aids, but the argument was over who should be responsible for paying them. But the damage was already done at that point, as the initial report resulted in the attorney being placed on a sarcastic "Lawyer of the Month" list on a popular legal website.

The husband then asserted to the court that all the bad publicity had harmed his practice, causing him to suffer financially and reduce the overall value of his partnership. Once valued at roughly $5 million, he said his stake had been reduced to approximately $630,000.

The wife countered that the reduction was due to the economy and her husband's own failure to work hard.

However, the judge sided with the husband. Where the wife had initially stood to earn half of the original $5 million value of the firm, the judge determined that her public tongue-lashing of her husband would result in her share being reduced to just 17 percent.

An uncontested divorce is certainly not for everyone, but there are a fair number of instances in which this kind of proceeding can preserve not only the value of assets, but the value of each party's dignity.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.


Monday, April 21, 2014

Adoption of Partner's Children in New York

Issues of child custody have never been easy, but over the years, they have become increasingly complex as the make-up of the American family has evolved.

It's not uncommon for partners to cohabitate unmarried for years, even as they raise children, acquire property and take on joint debts. There is nothing inherently wrong with this. Indeed, many couples report that such arrangements have led to long-term, stable partnerships. However, where children are involved, both parties should recognize that when one individual has no biological tie to the child and there has been no adoption, that party has no legal rights or responsibilities for that child.

Our Brooklyn family court attorneys know this is true regardless of how long the couple has been together or what role the partner has taken on during the course of the child's life. There may occasionally be a few exceptions made in extreme circumstances, but those are very rare. Unless the individual has legally adopted the child, it is very difficult to assert any sort of legal parental authority.

This was recently illustrated in the case of Moreau v. Sylvester, heard recently by the Vermont Supreme Court.

Here, the plaintiff appealed a decision by a family court dismissing his emergency petition for child custody and parentage of children to whom he had no biological tie or established legal connection. He also appealed an order denying him visitation on the grounds that he is the children's de factor parent - the only father they've ever known.

The Vermont Supreme Court rejected his argument and affirmed the ruling of the other court.

According to court records, the plaintiff and the children's mother were in an on-again-off-again relationship over the course of 10 years. they never married. The defendant gave birth to two children during this period, but the plaintiff was the biological father of neither. However, it was undisputed that during this time, he played a significant father-figure role in their lives.

Even when the couple separated for good in 2009, the plaintiff continue to maintain a relationship with the children and shared responsibility for them. The children even lived with him for a period of time when the mother's home became flooded and uninhabitable.

On a few occasions, the defendant refused to return the children to their mother on the grounds that he believed they were being mistreated. When the mother moved in with another man, the visitations became less and less frequent and the rapport of the former couple quickly deteriorated.

There were a couple of instances in which the plaintiff went to the defendant's home and banged on the door for long periods of time, despite being told to go away. He would later say he was concerned for the girls' safety or that he was trying to return items they needed for school. The mother successfully obtained a temporary restraining order against him, though this was later dismissed.

Then, without the mother's knowledge, her former boyfriend filed an emergency petition for sole custody of the children on the grounds that they were in danger. The court dismissed his requests because he was not related to the children biologically in any way.

He appealed.

The Vermont Supreme Court affirmed the denial of his request. The justices noted that case law had allowed in some instances for still-married stepparents to assert rights to the children or to be charged with certain responsibilities for them. However, custody is usually only ever awarded to a stepparent in those instances when there is clear and convincing evidence that the biological parent is unfit or there are other exigent circumstances.

The court underscored the fact that by welcoming nonbiological children into his life, he was accepting that he had no legal remedy to assert custodial rights.

This case shows why long-term cohabitating partners may consider at least formalizing their relationship with regard to child adoption. Options should be explored with an experienced Brooklyn family law attorney.

The Law Office of George M. Gilmer handles Brooklyn adoption proceedings and child custody disputes. Call us at (718) 864-2011.


Friday, April 18, 2014

Brooklyn Divorce Lawyers Help You Make a Clean Break

In filing for a divorce in Brooklyn, many couples weigh important issues such as child custody, division of property and how to divvy up debts.

However, it's also important to have a divorce attorney review your insurance situation to see whether policy updates are appropriate. This goes for health insurance, but also life insurance, property insurance and auto insurance. It's also important to review all property that is legally in each party's name, as it could impact future liability for that property. A case recently before the Florida Supreme Court reveals what can happen when these important steps aren't taken.

In Christensen v. Bowen, the court ruled that an ex-husband could he held vicariously liable for the negligence of his ex-wife, who had caused a fatal crash, simply by virtue of the fact that his name remained on the title of the vehicle. The court found that this was true even though he'd had no control over the vehicle since he had first purchased it for his then-wife as a gift several years earlier. He never drove it, didn't have a key, didn't have access to the garage where it was kept and didn't live with his ex.

While statutes regarding vicarious liability vary from state-to-state, the general principle of respondeat superior is that a third party can be held liable for the actions of another when he or she had the right, ability or duty to control the activities of the violator.

In this case, the ex-wife was involved in a deadly crash while driving a vehicle that, according to the title, was co-owned by her ex-husband.

The widow of the driver who was killed filed a personal injury lawsuit against not only the driver, but also her ex-husband on the grounds of vicarious liability. The case went to trial and the jury determined that while the former husband's name was on the title, he had no beneficial control over the car, and therefore wasn't liable.

However, the widow appealed, and the appellate court reversed the findings of the lower court on the grounds that the ex-husband did have beneficial ownership of the car in terms of property rights.

The general theory is that as a joint owner of that vehicle, he had the legal right to take possession of the car and could have potentially prevented his ex-wife from using the car, if he so chose, and therefore shielded himself from liability. However, neither the district court nor the state supreme court, which affirmed that ruling, addressed the fact that the wife too had an equal right to possess the vehicle. So it's unclear how the ex-husband could have asserted a superior legal right.

The far easier option would have been to have his name removed from the title as co-owner before the pair finalized the divorce. The fact that he did not is likely going to place him in a great deal of financial trouble, particularly because the vicarious liability claim isn't likely to be covered under any existing insurance policy.

That is, he probably didn't pay for an insurance policy on a car that he owned, but for all intents and purposes belonged to his ex. Further, her insurance firm probably wouldn't cover him as an insured because the two are no longer legally related or household residents. That means he could be paying for the judgment out-of-pocket - and personal injury verdicts are generally not dischargable even in a bankruptcy.

Having such matters handled at the time a divorce is finalized can save those dissolving their marriage a great deal of heartache in the future.

Contact our Brooklyn divorce attorneys at (718) 864-2011.


Thursday, April 17, 2014

I Am Getting a Divorce, can I get custody of my Dog or Cat?

For many New Yorkers, our four legged pets are extremely important members of our family and what happens to them when a couple divorces has become an important topic of conversation in social circles and within the legal community.

Traditionally, dogs and cats have been considered personal property, just like a car, furniture or television set and legal possession of a dog or cat after a divorce was something the divorcing parties needed to agree upon. If a divorce case went to trial, the pet’s value would be determined and he or she would be assigned to one party in the court ordered division of property.

Over the last couple of years, issues of pet “custody” have been brought in front of the courts by parties in several states and several judges have recently been willing to look at the cases beyond assigning a simple monetary value to the dogs involved. The approaches to resolving these cases are almost as varied as the cases themselves but courts are considering things like:

  • The best interests of the pet – including each owner’s work schedule, their means to provide for the pet and the space available to the pet at each spouse’s home after the divorce
  • Custody to of any children and their attachment to the pet
  • The behavior of each former spouse toward the pet

What about pet custody in New York?

In Brooklyn, New York this question is particularly timely as a local judge is about to address pet custody in New York family court for the first time. The case is Travis v. Murray, 308310/13. The case involves former spouses who are fighting over the custody of their shared miniature dachshund, Joey. Both women would like to keep Joey and since they have been unable to reach an agreement, Judge Matthew Cooper agreed to set the case for a hearing in his November 29, 2013 decision. Judge Cooper indicated in his opinion that he will ultimately make a decision about the custody of the dog in question by looking at “what is ‘best for all concerned,’”. This means that regardless of the outcome of this particular case, family courts in New York may be inclined to look at the factors he lays out in his decision including:

  • Who bore the major responsibility for the dog’s needs when the couple was together?
  • Who spent more time with the dogs on a regular basis?
  • Why did one party leave the dogs with the other party upon separation?
  • Where will the dog live if custody is given to one party over the other party?

If you are considering a divorce and have four legged “children” you will want to do your best to either reach an agreement with your former spouse about the pets. However, if you aren’t able to, it looks like the courts will now be willing to step in and help make that decision for you both. This is great news for pet parents who are concerned about the health and happiness of their four legged kids.

If you have questions about your specific situation, I’d be happy to answer your questions about pet custody and how it may play out in your New York divorce. 


Monday, March 31, 2014

Mandatory Parenting Classes Proposed by New York Lawmaker

Parents in New York will have to attend mandatory, government-run parenting classes in order for their child to proceed to the seventh grade. That's if state Sen. Ruben Diaz Sr., D-Bronx, is successful in his sponsorship of a law that would mandate that parents of elementary school children complete a series of parental support programs. 

These programs would provide parents with information regarding how to help children navigate difficulties like bullying, suicidal thoughts and struggles with sexual orientation. One of the courses would specifically focus on sexual, physical and emotional abuse. The bill would require employers to provide one day off work each year for parents to be able to attend. 

While the idea may not be bad in theory, our Brooklyn family law attorneys see a host of issues. Not only would non-compliance - even for legitimate reasons - unduly punish an innocent party (i.e., the child), but it could be used as a weapon against parents in subsequent matters before the family court. 

In general, parenting classes are only required in New York when deemed necessary by a judge. Even then, attendance - and therefore compliance - can be problematic. Not only are there significant costs associated with these programs (which parents usually must pay), but the time parents are required to take off work or shirk other responsibilities can create issues. 

Working closely with an experienced family court attorney can help prevent some of the traps associated with parenting courses and other stipulations that could result in non-compliance issues. (In other situations, such requirements can be used as leverage to modify support or visitation arrangements.)

However, mandating such courses for all parents seems extreme. But New York isn't the only state considering it. 

Recently in Alabama, state lawmakers have proposed a bill that would require divorcing couples with children under 16 to attend mandatory parenting courses intended to increase their sensitivity to each child's needs during divorce and separation. 

There are 19 other states that require parenting courses for divorcing couples. Alaska requires that parents either view an hour-long video or complete an online course. New Jersey and Minnesota require parenting courses if the parties can't agree on custody and visitation issues. 

There are some jurisdictions in a handful of states that require courses, but New York judges are allowed to decide these matters on a case-by-case basis. This kind of discretion is important, particularly when you consider that there are some situations in which domestic violence may come into play, making co-parenting efforts potentially dangerous. 

It is true that in some cases, parenting courses have been shown to reduce parental conflict. The U.S. Department of Health and Human Services reports up to a 53 percent reduction in re-litigation rates among separating parents who attend these courses. 

However, on the reverse side of the coin, some have indicated that these courses may not only be unrealistic in some cases, they could serve as an additional barrier to divorce. 

The proposal in New York is unique for the fact that isn't tied to any major familial shift, but rather would be mandated simply by virtue of the fact that the child is approaching seventh grade. A similar measure was struck down by the state legislature last year. 

Contact a Brooklyn family law attorney by calling (718) 864-2011.


Friday, March 28, 2014

Cohabitation Agreements Crucial if Couples Seek to Own Joint Property

With increasing frequency, couples are choosing to forgo the whole white-dress-and-black-tie affair and build a life together without a marriage license.

By doing this, people may think they can largely avoid the financial and legal mess of a divorce, should they ever part ways. However, if they choose to purchase property together or co-mingle any of their assets, things may actually be a bit messier than if they'd tied the knot. 

One way to avoid major headaches is by preparing a Brooklyn cohabitation agreement shortly after the purchase of the home. This is a very simple, easy way to clarify your stake in the property and how it should be divided in the event you separate. 

This message is especially timely as the housing market is making a comeback, following the 2008 crash and subsequent recession. A recent report indicated that in the last quarter of 2013, residential sales in Manhattan had spiked 17 percent from a year earlier. 

It's not clear how many of those were driven by cohabiting partners, but we do know that, according to the Centers for Disease Control and Prevention,  almost half of women between the ages of 15 and 44 were cohabiting between 2006 and 2010 - and the figure has been rising. 

There is nothing inherently wrong or bad about purchasing a property with your non-married spouse, but you should be mindful of the potential pitfalls. 

It's understandable that the discussion of a potential break-up is not a comfortable one, but having it now could save you a great deal of time, expense and acrimony down the road. And if you don't break up? Then you won't have to worry about it. 

A cohabitation agreement can clearly spell out who owns what and how the property should be distributed if you split. Most cohabitation property agreements will include the following stipulations:

  • How certain assets are owned;
  • Whether expenses and income are shared, and if so, how they are shared;
  • How new assets are owned;
  • How credit cards, bank accounts and insurance policies are to be managed;
  • How certain assets will be disseminated in the event of a separation, or at least the type of process that will be used in the event there is a dispute regarding property rights. 

Specifically with regard to the house, a cohabitation property agreement will indicate:

  • How the deed lists ownership;
  • How much of the home your partner owns;
  • Whether there are buyout rights, and what those are;
  • What will happen to the home if you separate;
  • How eviction might be handled. 

Keep in mind that these agreements, much like divorce settlements, aren't going to impact the standing either of you hold with the mortgage company or other creditors. However, if your former spouse doesn't uphold his or her obligations  under the agreement, you would have grounds upon which to take them to court and compel them to comply. 

Buying a home together is a major financial responsibility. It can be a smart choice, but you must have your eyes open to all the possibilities. You buy homeowners' insurance because you want to be prepared for the unexpected, and then hope you never have to use it. View cohabitation property agreements in the same way.

Call The Law Office of George M. Gilmer at (718) 864-2011 to learn more about cohabitation agreements in NYC.


Thursday, March 27, 2014

Relocation Custody in New York a Matter Frequently Before Family Court

One of the most common kinds of child custody cases to be determined by New York family court judges is known as relocation custody or "away custody." 

These are situations wherein the parent with primary custody, following a dissolution of marriage or child custody order, seeks to relocate with the child either out of the local jurisdiction or sometimes out-of-state, in opposition to the other parent's wishes. Brooklyn child custody lawyers know that the courts will not take these matters lightly, and they will be decided, per the standard set in the 1996 New York Court of Appeals case of Tropea v. Tropea, based upon what is in the best interest of the child. 

The fact that a parent has sole custody will not be reason enough for the court to approve a significant move with the child where the other parent is against it. This was illustrated more recently in the case of Steffy v. Steffy, which was reviewed by the Nebraska Supreme Court. Although this claim was made in a different state, Nebraska follows the same general legal standard as New York in these matters. 

According to court records in this case, the two parents were married in 2001 and their son was born in 2003. The mother was an active military member, assigned to duty at an Air Force base in Nebraska. Neither party had relatives in the area. 

In 2008, the couple divorced. The father was granted primary legal custody of the boy, with the mother receiving visitation and ordered to pay child support. The father had been active-duty military as well, but after retiring, earned a degree in childhood education and began working as a substitute teacher. However, he was unable to secure a full-time teaching position in Nebraska. The father remarried, and his wife worked as a full-time teacher in the district where they lived. 

The mother routinely exercised her visitation rights with her son, who was diagnosed with autism. The boy was on a specialized education plan at his school and, by all accounts, had been doing very well. 

Then in late 2010, the father petitioned the court for a modification of the child custody plan, with a request that he be allowed to relocate to Texas, where his opportunities to find a full-time teaching position would be more ample. The mother resisted. 

At a bench trial on the matter, the father presented an expert behavioral witness, who testified that the educational resources for the boy would  be greater in Texas as well. 

Additionally, the father indicated that he has family located in Texas. He indicated that if the move were allowed, he would continue to accommodate the boy's visitation with his mother because he viewed their connection as important. 

Meanwhile, the mother indicated that she had no plans to leave Nebraska or the military, and that she wanted to vehemently protect her visitation rights with her son. She feared that his education would be disrupted, and that she would no longer be able to take him for frequent visits to her sister's home in Missouri, as she had done during extended visitations. 

In its ruling, the court upped the child support payments owed by the mother, but denied the father's request, indicating that he had not met the burden of proof necessary to show he had both a legitimate reason to move and that it was in the child's best interest. The court indicated that the father's job opportunities out-of-state were speculative, and further there was enough evidence indicating the child's educational needs were being met in Nebraska. Additionally, a move could be difficult for the boy, and would serve to strain the relationship between both parents. 

The father appealed. 

The appellate court reversed the decision, siding with the father. That court found that the move would enhance the boy's quality of life, not significantly impact his mother's visitation schedule and was not motivated by malice on the father's part. 

The mother appealed. 

The state supreme court reversed the appellate court's findings, indicating that the district court did not plainly err in determining that the father had failed to prove the move would be in the child's best interest. The case was remanded back to the district court for further proceedings. 

As this case illustrates, away custody can be quite complex, and prevailing requires an attorney with experience across a broad range of child-custody issues. 

Contact our Brooklyn child custody attorneys at (718) 864-2011.

Wednesday, March 26, 2014

Illness Can Be Grounds for New York Modification of Spousal Support

There are many reasons a spouse could seek termination or modification of a Brooklyn spousal support order. One of those very likely to gain the attention of the court is a serious illness by either party. 

Spousal support, also sometimes referred to as "alimony" or "maintenance" is no longer the given that it was even just a few decades ago. Back then, spousal support was typically ordered paid to the wife by the husband either indefinitely or unless and until she remarried. 

However, most families today are structured so that the wife is often an equal if not higher wage earner than the husband. In these cases spousal support is either not awarded or it is very limited in both scope and duration. 

Factors that a judge will consider in awarding spousal support include:

  • The duration of the marriage and the age and health of both parties;
  • The present and future earning capacity of both parties;
  • The ability of both to become self-supporting;
  • The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
  • The presence of children;
  • Tax consequence. 

Even once the judge sets the order, it's not carved in stone. A substantial change in circumstances will prompt the court to revisit the issue, as spelled out in New York Domestic Relations Law, Article 13, Section 236. 

A good example of this was recently highlighted in the case of In re Marriage of Sisson, reviewed by the Iowa Supreme Court. 

Here, the two parties had been married for 11 years when the husband filed for divorce. He was 36. His wife was 47. They had a 10-year-old daughter. At the time, the father was earning $225,000 annually at his private accounting and tax practice. His former spouse hadn't worked since the birth of her daughter, but since their separation began working as a retail manager, earning about $40,000 annually. She then decided to return to school to become a cosmetologist. The divorce was finalized, with both parents awarded joint custody of the child and the father ordered to pay both child support and spousal support to his ex-wife over the course of the next eight years, until their child had graduated high school.

A few months later, the father remarried. A few months after that, the ex-wife began to experience tremors in her hands. The immediate impact of this was that she decided to forego cosmetology school, and returned to work as a retail manager. 

However, it was not long before it was revealed that the tremors were a precursor to something much worse. She was diagnosed with a form of terminal blood cancer. She was in the early stages, but was given between five to seven years to live. 

With this new diagnoses, the ex-wife sought to modify the spousal support payments, as her ability to work had been greatly diminished and the cost of her health care expenses now soared. The ex-husband countered that he should be awarded full physical custody of their daughter.

Ultimately, the family court rejected the ex-husband's request for sole custody, finding that the mother's illness had not at that point become an impediment to her role as caregiver. Further, the court increased her monthly maintenance and extended it indefinitely until the end of her life. Practically speaking, this would likely be less time than the original order, but the ex-husband appealed on the grounds that it was too high and there was no stipulation for the payments to end in the event his former wife remarried. 

The state high court affirmed the earlier ruling of the family court, finding no abuse of discretion. 

Generally, courts will not order spousal support to be paid for an indefinite period of time, except under circumstances that are deemed extraordinary. A terminal illness developed less than a year after the finalization of the divorce decree meets this standard.

Modification might also be warranted in cases where the party who pays the support has been stricken with a serious illness or condition. 

To determine whether you have strong grounds on which to request a spousal support modification, it's important to first consult with an experienced family law attorney.

Call The Law Office of George M. Gilmer at (718) 864-2011.


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