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Clifford J. Petroske
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Clifford Petroske’s Answers

228 total


  • 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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  • Is post-divorce consolidated student loan separation possible?: My ex-spouse and I hold a consolidated loan- loan is in my name

    The loan was consolidated prior to divorce. We were divorced in 2009, in Brooklyn, New York. Technically, the loan is in my name- he is listed as a co-borrower-, because my name was the first name listed on the form. (we didn't understand this at ...

    Clifford’s Answer

    The first step is to inquire of the lender if such a separation is possible. Generally, in divorce, legal results concerning obligations follow lender rules (I.e., if the lender continues to hold both of you liable there is little point to a court directing otherwise). Assuming your lender would agree to satisfy your loan (the smaller balance) with a lump sum payment, a modification stipulation should be negotiated with your former spouse that would relieve you from any monthly payment obligation following the lump sum payment. If this is not successful, a post-judgment application should be considered. Speak with counsel regarding what basis, if any, may exist for such an application, and whether it would be cost effective.

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  • Questions on child support and alimony law in NY city. Ex wife wants to move with child from California (without an agreement)

    Ex wife wants to move with child from California (without an agreement in place on support, asset sharing matters in California): - does child support take into account income of both parents or only the income of the non-custodial parent? what i...

    Clifford’s Answer

    From your question it appears as though your wife is planning to move to NY from CA without your permission. If you are planning on remaining in CA, you should seek Advice from a Californian attorney who may be able to get a court order to restrain your wife from leaving the state. Even if you do nothing to keep her from moving, you should consider commencing a divorce action in California while you still can, to avoid the expense of having to appear in a New York action. Because the law may impart different results in the different states you should first get advice from NY and from CA attorneys to see which jurisdiction would provide the better outcome for you. If NY provides the better result for you, it may be worth the expense of appearing here.

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  • My ex wife is taking me back to divorce court after a signed separation agreement and a divorce decree signed by a judge

    She is claiming that she signed the agreement under duress because she stated that I told her I was going to" kill myself" if she did not sign the agreement. This is TOTALLY FALSE and she is just trying to get more money. In the original agreeme...

    Clifford’s Answer

    A separation agreement will not be set aside lightly by the court. Just an allegation of duress, absent corroborating evidence, is unlikely to persuade the court that her will was overridden, assuming you make a vigorous defense in opposing her application. Usually, a separation agreement (or stipulation of settlement if the agreement was made during a pending divorce action) will be set aside if there is proof that the agreement was unfair at the time it was signed and, if there is a judgment of divorce, that it was unconscionable at the time of the entry of the divorce judgment. If the total assets were $120,000, then the $60,000 payment might be fair, but more information is needed to be sure.

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  • Does possible conception during a week visit to another state allow the state to have jurisdiction over child support?

    At the time petition was filed the child was unborn but now the child lives in New York. Texas was the state of possible conception.

    Clifford’s Answer

    New York will have jurisdiction over a support or paternity proceeding if the child has lived here since birth, or for the past six months if older than six months. New York will also have jurisdiction over you in a paternity proceeding, if any of the following apply to you (you are "the individual" in this excerpt from the relevant statute):
    (1) the individual is personally served with a summons and petition within this state;
    (2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
    (3) the individual resided with the child in this state;
    (4) the individual resided in this state and provided prenatal expenses or support for the child;
    (5) the child resides in this state as a result of the acts or directives of the individual;
    (6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
    (7) the individual asserted parentage in the putative father registry maintained in this state by the department of social services; or
    (8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

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  • Divorce Degree Partially Ignored

    Even though our divorce was finalized about a year ago, my ex-spouse had not adhered to it and still owes me items (artwork). Do I file and Order to Show Cause on my own? Thanks!

    Clifford’s Answer

    The application you will likely need is an Order to Show Cause for contempt of court. This is not something you should attempt on your own. There are statutory notice requirements, as well as numerous elements of proof that must be properly stated in the supporting papers, that require some expertise. Often a hearing will follow the court's initial decision, and you will need an attorney for that as well. Planning the application is also important, for which you will need an attorney's advice. Hopefully, an attorney will help settle the matter without the need for litigation -- don't underestimate the power of a well written attorney letter posing stark choices to your ex. If that doesn't work and the court application is needed, take heart --You can also get an attorney's fee award, so hiring an attorney is less financially onerous.

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  • Who is responsible to cover babysitting cost when kids are off from school (holidays) if she gets child support?

    who is responsible to cover babysitting cost when kids are off from school (holidays) if my ex gets child support? Please advise....

    Clifford’s Answer

    A babysitter is child care (and an add-on to basic support) if needed to facilitate employment of the custodial parent. However, if there is no provision in your child support order for child care, you have no obligation to pay for it at this time. The best your ex can do is bring a petition for modification of the order. Any child care obligation imposed upon you thereafter would only be retroactive to the date of that filing. In the new order, you would be ordered to pay your pro rata share of the obligation, usually stated as a percentage of any future child care expenses incurred.

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  • If you are employed by your spouse and due to divorce are terminated, can you collect unemployment?

    I was employed at my husband's business for 15 years. We are divorcing and my position will be terminated. may I collect/file for and receive unemployment?

    Clifford’s Answer

    • Selected as best answer

    Yes, you can collect unemployment like any other employee upon termination, provided your husband's company has maintained unemployment insurance. Don't forget the bigger picture though -- once you are out of work, your support needs are greater, even with unemployment, so you become a candidate for greater maintenance from your spouse. Now is a good time to plan your support strategy with your attorney, before you are unemployed.

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  • Are there precedents for the courts not allowing overnights w/a child that is ADHD / Autistism?

    My daughter has conflicting diagnoses. ADHD from some dr's , autism from others. My ex doesn't want her overnight at my house during the week and is citing the diagnosis as a reason. Are there precedents about this and the courts not allowing over...

    Clifford’s Answer

    Weekday overnight visitation is still the exception, not the rule. As such, it becomes the burden of the presumptive non-custodial parent to demonstrate to the attorney for the child and to the court that any deviation from the conventional standard visitation -- alternate weekends and one evening during the week (usually 2-3 hours) -- is in the child's best interests. A child's special needs can cut either way -- perhaps the child does better with predictable nighttime rituals (advantage custodial parent), or perhaps the child is so strongly bonded to the non-custodial parent that frequent overnight visits should be the overriding concern (advantage NCP). Although case law can be helpful, each case presents unique facts, and should be argued onthe facts first.

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  • Ex- Husband possibly getting money from a lawsuit regarding income earned during our marriage.

    Post divorce my ex husband filed a lawsuit against his former employer claiming he was classified incorrectly. Claiming he should have been Non-Exempt and was being paid as an Exempt employee. He worked an average of 12 hour days for years. D...

    Clifford’s Answer

    Assuming that the non exempt status will not result in a higher gross income, his child support will not be effected. However, if it increases his net or available income, his ability to pay final maintenance is enhanced, which may result in a higher maintenance award. There are numerous factors at play in determining the amount and duration of maintenance in the judgment of divorce including your financial need and the pre-separation lifestyle, (among others), so it is difficult to say how much impact increased income will make on the amount of maintenance. If your husband receives a lump sum award for retroactive monies owed, you will have a claim to as much of 50% of the award in equitable distribution.

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