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Court October 31, 2011

GETTING DIVORCED WITHOUT RUINING YOUR RELATIONSHIP WITH YOUR CHILDREN: SOME PRACTICAL ADVICE BY A NEW YORK DIVORCE ATTORNEY


Posted by Marc Rapaport

As a New York divorce lawyer for nearly the past two decades, I have observed that even in the most bitter of divorces, each of the divorcing parents continues to love and want the best for their children.  However, the dissolution of the parties' marriage creates a tense and oftentimes confusing dichotomy - both for the parties and their children.

Divorce occurs when one or both of the spouses has determined that the marital relationship is no longer fulfilling and cannot be saved.  Nonetheless, both spouses continue (as they should) to seek close and healthy bonds with their children.   This stressful dichotomy merits careful consideration.  Divorcing spouses can and should discuss how they will continue to cooperate so that their children may continue to enjoy  happy, healthy, and mutually-fulfilling relationships with both of them.  The parties' respective divorce lawyers can serve important and positive roles in helping couples reach practical arrangements with regard to parenting.  It is important that each party have an experienced divorce lawyer who is thoroughly familiar with New York divorce and family law.  Among other things, experienced and skilled divorce attorneys help their clients reach settlements (separation agreements) that set forth the parties' mutual understanding and goals and that promote the best interests of un-emancipated children.

The interplay between divorce and parenting is complex.  This article seeks to address some of the more common issues that arise in cases involving minor children, and to discuss recent, relevant developments in New York divorce law.

A Divorced Parent's Unresolved Feelings of Bitterness Can Lead to "Parental Alienation" or "Inappropriate Parental Influence":

At times, the uncertainty, trauma and bitterness of a divorce will lead one or both parents to engage in behavior that, unbeknownst to them, increases the stress that children experiencing in conjunction with divorce.  For example, a parent might not fully realize the extent to which his or her child (or children) feels confusion or distress when the child overhears the parent speaking in a disparaging manner about the other parent.  This is sometimes referred to as "parental alienation syndrome."  In such instances, counseling is particularly important.  If not resolved, such conduct can have extreme consequences, such as a child’s alienation from the parent who is being disparaged. 

A parent’s verbal remarks or conduct that is disruptive of a child's relationship with the other parent is a matter that has fueled bitter court proceedings, both in New York and in courts throughout the United States.  Judge Jeffrey S. Sunshine (who is a Justice of New York’s Supreme Court in Kings County, and is widely held in high esteem) has used the phrase "inappropriate parental influence" to describe such behavior.  

In the case NK v. MK, 851 N.Y.S.2d 851 (2007), Judge Sunshine issued a decision that denied the father's request that the Court punish the mother for her inappropriate comments to the children regarding the father by suspending child support and maintenance.  Judge Sunshine explained that such relief was not appropriate at that juncture because the mother she "was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis."  However, the Court ordered the mother to cease her behavior:

Pending resolution of the post trial applications, the mother is hereby enjoined and restrained from discussing this litigation at any time the child may be within 1,000 feet of her. That includes her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection, and this opinion; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships[.]

No Good Deed Goes Unpunished": Under New York law, A Child Support Obligor Does Not Receive Credit for Voluntary Payments or Purchases on Behalf of the Children

In other instances, a parent's love for the children of the marriage leads him or her to engage in conduct that is destructive of his or her financial or legal interests.   A fairly common scenario is a father who has fallen behind on his child support obligations, yet continues to make voluntarily purchases (such as paying for cell phone bills or items of clothing) for a child.  Most payers of child support (in the vast majority of cases, fathers) do not realize that voluntary purchases that they make for children are not "child support", and that most courts will not give them credit for such payments should the custodial parent file an action seeking to collect child support arrears. 

Stated succinctly, under New York law, voluntary payments made for children are not child support, and such payments do not diminish arrears.  This issue was addressed by the New York Supreme Court, 2nd Department, approximately two months ago, in the case LiGreci v. LiGreci 929 N.Y.S.2d 253 (2nd Dept. 2011).  The Court held that "[t]he plaintiff's voluntary payments for the benefit of the children, not made pursuant to a court order, may not be credited against the amounts due pursuant to the judgment of divorce."  Id. 

Clearly, it is painful for a parent to refuse to make purchases directly for his or her children. This is particularly true for divorced parents, who sometimes experience feelings of guilt at having "inflicted" divorce upon their children.  As a divorce lawyer, I encourage clients who are experiencing such emotions to seek counseling. 

Feelings of guilt are not merely counterproductive, but also (I firmly believe) unjustified.  Each person is entitled to fulfillment and happiness, and a healthy marriage is one that helps each of the spouses to enjoy life to its fullest.  Couples who indefinitely delay or avoid divorce solely for the perceived benefit of their children sometimes subject themselves, and their children, to years of avoidable, yet painful, conflict, misery and stress.  Oftentimes, couples who delay a divorce "for the kids" later discover that their children knew  – all along – that the couple was miserable.    In such cases, divorce is a relief for the entire family, including the children.

When couples who have minor children get divorce, they must address legal, financial, psychological and other issues that are sometimes painful.  As a divorce lawyer, my role is to help each client identify such issues, and then, through litigation or negotiation (or both) help my client reach a resolution that serves their interests and those of their children.

Marc A. Rapaport is a divorce attorney in New York City, with offices in the Empire State Building. Mr. Rapaport is the founder of Rapaport Law Firm, PLLC, a full-service law firm.

All rights are reserved. © 2011 www.rapaportlaw.com


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RAPAPORT LAW FIRM, PLLC.
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MARC RAPAPORT IS A NEW YORK DIVORCE ATTORNEY WITH MORE THAN 18 YEARS OF EXPERIENCE. HE IS A CONTRIBUTOR TO NEW YORK MAGAZINE'S "ASK THE EXPERTS" COLUMN, AND HE REGULARLY APPEARS IN THE LOCAL AND NATIONAL MEDIA REGARDING NY DIVORCE AND FAMILY LAW. IF YOU ARE FACING DIVORCE, IT IS ESSENTIAL THAT YOU RETAIN AN EXPERIENCED NY DIVORCE LAWYER. FOR AN APPOINTMENT, CALL THE RAPAPORT LAW FIRM TODAY: (212) 382-1600 or EMAIL MR. RAPAPORT.
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