I am divorced and living in Idaho. My divorce was in New York. I have a couple questions. First, I am retired Army. My ex-wife was awarded 50% of my retirement pay. I paid her a lump sum a few years ago and now i am paying a monthly amount to her each month. Does this go for life?Second, we have two children. The youngest is 19 this year. He joined the Army last summer but came home from boot-camp and enrolled in college. Am I still responsible for his child support? We don't have an open communication, and I have a feeling he may have been dis-honorably discharged. But I do not know this as fact.
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Can you tell me if your final divorce decree / settlement has any conditions about the termination of alimony?
It is very vague. It was a 'verbal agreement' that it was to be half of what my amount of retirement would be for the calculated years we were married, but, as I was suffering from head trama from the war, I am just now realizing that it doesn't specify.
Thank you. One moment please while I research this, and will get back to you shortly...
Okay, thank you.
When a spousal support award is made in family court, the court does not set time limits on the award. This means that the spousal support award can last for many years. To terminate or modify spousal support, one of the spouses has to petition the court for a modification of the award. If there is no modification, spousal support ends only after a divorce. During the divorce proceeding, the court will decide whether to award spousal maintenance. The determination of spousal maintenance and the grant of a divorce will terminate any existing family court spousal support award. Pursuant to DRL 248, the court must terminate maintenance paid to the wife upon proof the wife is remarried, and at the court's discretion, may terminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife although not married to such man. This statute applies only to maintenance which is court ordered, and appears to be a relic of the past. Most divorce stipulations of settlement will provide that maintenance will terminate upon either remarriage or upon cohabitation with an unrelated male (or female if the the recipient is the husband). Merely living together is insufficient, as illustrated in Bliss v. Bliss, 66 NY2d 382 (Court of Appeals 1985). In Bliss, the ex wife lived with her male companion for over fourteen years, but the ex husband's request to terminate support was denied as there was no proof she was holding herself out to be married. Nor can a court impose a lesser standard to terminate the maintenance. In Florio v. Florio 25 A.D.3d 947 (3rd Dept. 2006) the trial court awarded maintenance to the wife, and ruled that it may be terminated upon her cohabitation with an unrelated male. In modifying this provision, the Appellate Division said it was erroneous to set a standard that differed from the statute.
Maintenance may be modified pursuant to DRL 236 B(9)(b), which provides that
"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship. Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines."
Thus to modify an award of maintenance based upon a stipulation of settlement, the moving party must show extreme hardship.
As for the child support, In New York, child support ends when a child is "emancipated." In addition to attaining the age of 21, there are other ways a child can be considered emancipated. Typically, the parties will enter into a settlement agreement which will specify when child support ends. In cases that do not settle or where the settlement agreement is silent on this issue, other factors may give rise to an emancipation event. Children are considered emancipated if they become economically independent through entry into the military service or a military academy, via marriage, or as a result of full-time employment. The focus is whether the child is truly economically independent. Therefore, temporary employment, or full time employment during the summer will not qualify. Likewise, if the child is working to save money for college tuition, this will not be considered as economic independence.
If you have such a change in circumstances, you can fill out the following form and follow the directions: http://www.nycourthelp.gov/diy/supportmodification.html. You will have to do this, as it does not happen automatically.
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So, because he did join the military, he was emancipated? After we fill out the form?
It does clear it up but only a bit. So, him joining the military made him 'emancipated' correct? As long as we fill out the form? and as far as the alimony, Im still not clear. Does she get it for as long as she is living? She is in New York and living with a woman and has came out as a lesbian. Does this qualify as co-habitating? Even if it is my military retirement? Does this change anything?
Yes, when he joined the military, he moved out of the house and was self sufficient.
As for alimony, yes, unless she first marries or cohabits with another man (romantically, not just as a roommate)
or another woman
As for military retirement, I can't say for certain. Ultimately it would depend on the nature of the actual agreement and what it said, and I would defer to an attorney to review those particulars to see. But you could end alimony upon the showing of romantic cohabitation with another.
And the child support?
So you mean that his retirement may not be the same as alimony?
Yes, like I said before, when he moved out of the house and was self sufficient (joining the military) would mean he's emancipated and you can file for a termination of child support as well.
Okay, thank you. Can this conversation be printed?
As for the retirement, that's correct. There's something known as a QDRO (qualified domestic relations order) that would generally govern retirement accounts. This is an award of a future payment (retirement) but ordered at the time of the divorce. Basically the person does not have that money yet until he/she retires, and then it would be.
After you rate this question, this will switch from chat to Q&A, at which point you'll be able to print it out.
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