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Here’s an article from Spodek Law Group. In almost any divorce case in the state of New York, the court will be required to make legal determinations regarding spousal support, child support or both. Such determinations are of great significance, since they can have an enormous impact on both parties in the divorce. When making decisions in these matters, the court is expected to use very specific and entirely accurate information when reaching its conclusions.
But it is sometimes the case that courts may use information that is incorrect. Or the courts may arrive at their determinations without possessing all the facts and information necessary for a just and equitable conclusion to the divorce. Legally, this is referred to as a “mistake of fact.” Fortunately, you can ask that this order be reconsidered, whether your former spouse objects to it or not.
An Adversarial Process
Every divorce is unique, with some being more acrimonious than others. In some instances, couples try to use mediation to smooth things out during the divorce process. But regardless of how amicable your divorce may seem on the surface, it is a major mistake to simply assume that the other party in the divorce will want you to receive fair treatment. You will need to ensure that you have an experienced lawyer in your corner who can help you get the best possible outcome. In all likelihood, your spouse will have a law firm working hard to get the maximum settlement for their client, so you should do the same.
Mistaken Support Orders
When a mistake of fact occurs, family law as laid out in the statutes of New York’s date allows the party that was adversely impacted by the decision to bring this matter to the attention of the court. In Article 52, section 5241 (E) of the New York Consolidated Laws, the aggrieved party can suggest that the determination of the court was in fact a mistake. Such mistakes of fact are described in these laws as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” In many instances, this mistake of fact is connected to how much maintenance – i.e. support – the court ordered one of the two parties to pay.
Filing an Objection
Under the law, the party objecting to the order of the court must file this objection with the court no more than 15 days after being served with the original order. While it depends on the specifics of the particular case, the objecting party has to file this objection with either a support collection unit or with the local court having jurisdiction over their case. The legal formalities of this process have to be performed correctly if the party involved has any hope for a successful resolution of the matter.
When the party objecting to the order formally presents their objection to the previous decision of the court, they are permitted – and even encouraged – to provide additional documentation designed to support their premise that the prior support order resulted from a mistake of fact. Once this objection has been filed, the support collection agency or the court has no more than 45 days to complete their review of the objection – and the supporting evidence – and then offer a decision on the question.
Failing to File on Time
Should the party fail to file this objection before 15 days have passed after the original order, or if the agency or court reviewing the objection overrules the objection, the original support order will go into effect. Once that order is in fact in force, and if it proves necessary, the individual that the court designated to receive the support – i.e. creditor – will be able to garnish the wages of the debtor.
Future Options Still Open
However, keep in mind that all of these points in no way interfere with one or both parties’ ability to change a support arrangement in circumstances where there has been a material change in the situation. For instance, if the creditor becomes unemployed and is unable to provide the level of support ordered by the court, this would represent a change in the situation that could result in an alteration of the support order.
Other Child Support Issues
Once minor children reach the so-called age of majority, in most cases there will be no further need for child support and you can request that the court end these payments. However, there are exceptions to this. If you have a special needs child who is disabled physically or mentally and who will require a great deal of care for the rest of his or her life, child support payments may have to continue well after the child has reached adulthood.
Dealing with a Mistaken Support Order
If you are a party to a divorce in New York State and feel that the support order provided by the court is incorrect because a mistake of fact occurred, you need to reach out to an experienced lawyer who can help you fix this mistake. At Spodek Law Firm, we have years of experience in dealing with spousal and child support cases and can use all of our skills and knowledge to help you get a successful outcome in your case. If you would like legal advice about child and spousal support or any other divorce related topic, feel free to contact us immediately. We will be pleased to schedule a consultation with you so we can advise you as to the best course of action in your case.