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Clifford J. Petroske
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Clifford Petroske’s Answers

237 total


  • Are assets a factor in determining child support

    My ex and I have an agreement that is not court ordered. He pays 25% of his income reliably but can't afford to pay for half of the kids health insurance. I recently asked him again and he says he is still unable to afford it. I found out t...

    Clifford’s Answer

    The non-custodial parent's ability to afford child support, including medical insurance, co-pays, and child care, is irrelevant. All of these obligations are determined on the basis of gross income without any consideration of whether your ex has sufficient net income after taxes, or enough after payment of his other bills. The fact that he (and/or his wife) purchased a house has no significance.

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  • Am I able to accompany my attorney at a Preliminary Conference when, with opposing counsel, talks to the judge in chambers?

    I'm in the middle of a divorce action in Suffolk County, NY. We have had 3 conferences already, none with any resolution (opposing counsel filed a pendent lite motion and we have provided a draft global settlement agreement). All three times my ...

    Clifford’s Answer

    A divorce case is heard in the Supreme Court, which is a court of record. As such, you are entitled to insist that all proceedings be held in open court and on the record. Depending on the judge, this may be some cause for irritation, however, since the usual approach is to conference in chambers and off the record. Speak with your attorney as to the best approach --- a lack of transparency may be a good trade off, if more gets accomplished in the informal setting of a chambers conference, especially if the alternative is annoying the judge.

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  • For a child custody case, why in the judges chambers for the first initial appearance?

    It is our first initial appearance in court and wanting to know what to expect since it is being held in the judges chambers. We are the parents going for custody of our son, who is 3 years old, who is in custody of a non-relative, third party per...

    Clifford’s Answer

    Conferences are often held in chambers, with only attorneys attending, to allow the parties -- through their counsel -- to speak more freely about the issues of the case than can be expected when a record is being made in open court. This provides an opportunity to explore settlement options in earnest with a minimum of posturing. It can be a good thing, but is also fraught with danger that the court will come away from the conference, after gaining a superficial understanding of the facts, prejudiced against your case. Remember, since both Supreme Court and the family court are courts of record, you can demand that all proceedings occur "on the record". It's your choice.

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  • Do I have any legal obligations to let my ex Skype with our 3 year old. Divorce pending no sort of orders have been issued.

    my ex served me with divorce papers and until then, wasn't very interested in being in contact with me or our child. now he's messaging me on facebook asking to see our child whom he has not physically seen in nearly 2 years and the last time the ...

    Clifford’s Answer

    The best person to answer this question is your lawyer, since he will know all of the facts and circumstances. speaking in general, there is no obligation to permit Skype or even phone contact absent a court order saying so. In certain cases where there has been an extended absence or abuse, it may even be improper and contrary to the child's best interests. Anytime there is conflict concerning a child the court will seek input from the attorney for the child after the child has been interviewed.

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  • What happens when my ex fakes his financial affidavit?

    we were informed to complete Financial affidavits for the support magistrate, I already know my ex is a criminal and will do whatever it takes to get what he wants. His attorney has no morals and ethics as well. So how can I prove he is lying whil...

    Clifford’s Answer

    It's difficult to answer your question with authority on these limited facts, since a proper strategy requires knowledge of all the facts. That said, third party disclosure by subpoena upon the girlfriend for production of her bank records might be a part of the strategy. You should also consider whether investing time and money on a direct attack against your ex's FDA is the best course. It might be wiser to focus your trial strategy on proving his income is greater than he disclosed (if that is the case) since this is far more relevant in a support proceeding. It's best to speak with an attorney to get the full picture.

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  • How can one find out of someone has been previously married and when??

    I'm in a situation where I need to prove that my ex was previously married. Is this possible?

    Clifford’s Answer

    The pension you mention is likely the NYFD line-of-duty disability pension. In a divorce you would likely receive 50% of the marital portion of the pension which is attributable to deferred compensation (as distinct from the portion of his pension payment attributable to his disability which remains his separate property). The pension plan must be reviewed to determine if there is a disability portion of each payment.
    The child support you receive could be based upon only the income that remains to him after you get your share of his pension,but this is unlikely if he remains able-bodied and could work other employment despite his retirement.

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  • Can I file for Child Support in NYS?

    I currently have a support order in PA. I am in process of transferring my PA Custody order into NYS. We have lived here for atleast 6 months. My ex husband still lives and works in PA. Will NYS handle the child support case for me? Its very hard ...

    Clifford’s Answer

    New York can modify or enforce your child support order if your ex consents in writing to NY jurisdiction. If not, then you must remain in the PA courts so long as he resides there.

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  • If my ex husband and i have shared custody of our 10 year old daughter can he legally move her to maryland with out my consent?

    We got divorced two years ago by mutual agreement. We did our documents through we the people and chose to do the visits with my oldest daughter and our daughter one week with him and one with me. We stayed here in schenectady to make it easier fo...

    Clifford’s Answer

    It's unlikely that your ex-husband would succeed in getting court permission to re-locate to Maryland with your daughter on the facts you have presented. However, you have to make the court application to restrain him from relocating, to protect your custody rights. This is done by order to show cause in either the Family Court or the Supreme Court. It's best to seek full custody (in the alternative) in case your ex decides to elope with your daughter despite being restrained, in which case the court can order immediate temporary custody to you. Seek the advise of experienced local counsel for help with this, as knowledge of the law and procedure is especially important in a relocation case.

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  • Property rights in a divorce case

    A few weeks ago, an attorney with whom I'm no longer working filed a response to my wife's divorce summons, demanding a copy of the complaint and all other papers be sent to me. I read the summons, and I understand it to say that neither party ca...

    Clifford’s Answer

    Your wife's conduct, as you describe it, is a violation of the automatic orders attached to the summons. One option is to file a contempt motion, but use of this remedy should be carefully considered and well planned, especially where the cost of the motion and the hearing which will likely follow may be prohibitive. Although an attorney's fee award can be granted along with a contempt remedy (fine or imprisonment) and could reduce the ultimate cost to you, many judges are reluctant to tie up courtroom time on fights over furniture and will deny attorney's fee awards to an overly litigious party. Seek the advice of an experienced attorney, as there really is no substitute for advice from an attorney who knows all of the facts of your case, including the judge who is handling your matter.

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  • How is child support calculated if we have 50/50 physical custody?

    the mother of my children offered this option of 50/50 on the physical part of custody so I was wondering how that works.

    Clifford’s Answer

    Where there is equal shared custody the parent with the greater income usually pays full child support on his/her gross income, in the same manner as a non-custodial parent in the more traditional case. That said, there is often room for negotiation of support where the custody issue is still "in play." Speak with an attorney before proceeding further.

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