What is Pendente Lite?

Pendente lite refers to temporary court orders issued during a divorce that address urgent matters like spousal support, child custody, and living arrangements while the case is pending. The Latin phrase means “pending the litigation.” These orders keep both spouses financially stable until the final divorce decree. But they also set precedents that may influence the final settlement. Manhattan couples can seek modifications if circumstances change. 

At the Law Office of Richard Roman Shum, Esq., NYC divorce lawyer Richard Roman Shum helps clients throughout New York City secure fair temporary arrangements. Our divorce attorney understands how pendente lite orders can affect both your immediate needs and your long-term outcome.

This guide explains what pendente lite orders cover in New York, how to file for temporary relief, what the court considers when setting support amounts, and how these orders shape the divorce process. You will also learn when modifications are possible and what documentation strengthens your case. Call the Law Office of Richard Roman Shum, Esq at (646) 259-3416 to discuss your situation.

Why Are Pendente Lite Orders Necessary in Divorce?

Pendente lite orders maintain financial stability while a divorce proceeds. New York divorces can take months or years to finalize. Without temporary orders, the lower-earning spouse may lack funds for rent, utilities, and basic needs.

The legal basis comes from the New York Domestic Relations Law, which empowers courts to issue temporary relief. These orders prevent one spouse from being harmed financially by the other’s actions during the divorce. If one spouse controlled the marital finances, pendente lite support ensures the other spouse can pay living expenses.

Courts also use these orders to protect children. Temporary custody arrangements keep routines stable. Child support ensures kids receive financial support throughout the process. Asset preservation orders prevent either spouse from hiding or selling marital property before the final division.

Key Takeaway: Pendente lite orders serve as a financial bridge during divorce proceedings, ensuring that the lower-earning spouse and any children maintain stability until the court issues a final decree.

Contact Richard Roman Shum at the Law Office of Richard Roman Shum, Esq. to discuss temporary support options in your Manhattan divorce case.

What Do Pendente Lite Orders Cover?

Pendente lite orders address multiple urgent issues during divorce. The orders can cover financial support, custody arrangements, property management, and living arrangements.

Temporary Spousal Maintenance

Temporary maintenance provides financial support to the lower-earning spouse. New York Domestic Relations Law § 236B(5-a) sets a guideline formula that is driven primarily by the parties’ incomes and whether child support is being paid. The court can deviate from the guideline amount if it finds the guideline result unjust or inappropriate after considering the statutory deviation factors.

As reflected in the NY courts’ current maintenance worksheet/calculator materials, the guideline formula applies to the first $228,000 of the payor’s income. If the payor’s income exceeds $228,000, the court calculates guideline maintenance up to that cap and may then award additional temporary maintenance on income above the cap in its discretion after considering the statutory factors.

Child Support and Custody

Child support follows the Child Support Standards Act (CSSA). The court calculates support based on the combined parental income and the number of children. Percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and no less than 35% for five or more children.

Temporary custody orders establish where children will live and how parenting time will be divided. The court’s focus is on the children’s best interests. Factors include each parent’s ability to provide stability, the children’s relationships with each parent, and any safety concerns.

Exclusive Use of the Marital Home

When spouses cannot live together peacefully during the divorce, one spouse may be granted exclusive use of the marital residence. This prevents conflict and protects children from witnessing hostility. The court considers factors like who has primary custody and whether there are safety concerns.

Asset Preservation

Courts can freeze marital assets to prevent dissipation. These orders prohibit selling, transferring, or hiding property during the divorce. The restriction ensures assets remain available for fair division in the final settlement. Mortgages, credit card debt, and other obligations may also be allocated between spouses temporarily.

Health Insurance and Living Expenses

Pendente lite orders can require one spouse to maintain health insurance coverage for the other spouse and children. The orders may also allocate responsibility for ongoing expenses like mortgage payments, utility bills, car payments, and other costs necessary to maintain households.

How Do You File for Pendente Lite Relief in New York?

Filing for pendente lite relief follows a structured process in the New York Supreme Court. The moving party must prepare and submit specific documents to request temporary orders.

Prepare the Motion Papers

The motion papers include a Notice of Motion, an Affidavit in Support, and relevant exhibits. The affidavit must detail the relief you are requesting and explain why it is necessary. Include financial documents like pay stubs, tax returns, bank statements, and a list of monthly expenses.

A Statement of Net Worth is required. This document provides a complete picture of your income, assets, debts, and expenses. The opposing party will also submit its own financial disclosure.

File with the Court

Submit the motion papers to the county clerk where your divorce case is filed. In Manhattan, divorce cases are handled by the New York County Supreme Court at 60 Centre Street. The filing fee varies based on the type of motion. Check with the Matrimonial Support Office in Room 311 for current fee information.

Serve the Other Party

You must serve the motion papers on your spouse according to New York’s service requirements. This gives them notice of the hearing and an opportunity to respond. Your spouse may file opposition papers presenting their own financial information and arguing against your requested relief.

Attend the Hearing

Both parties will attend a hearing before a judge. The judge will consider the evidence, review financial documents, and hear arguments from both sides. Be prepared to answer questions about your income, expenses, and needs.

Receive the Court’s Decision

After the hearing, the judge will issue an order either granting or denying the requested relief. If granted, the order is enforceable immediately and remains in effect until the final divorce judgment or until the court modifies it.

How Is Temporary Maintenance Calculated in New York?

New York uses a statutory formula to calculate temporary maintenance. The formula varies depending on whether child support will also be paid.

Formula When Child Support Is Paid

When the paying spouse is also paying child support, the court uses this calculation:

1. Subtract 25% of the recipient’s income from 20% of the payor’s income
2. Multiply the combined income by 40% and subtract the recipient’s income
3. The lower of the two amounts becomes the temporary maintenance award

If the result is zero or negative, no maintenance is awarded.

Formula When No Child Support Is Paid

When child support is not involved, the formula changes:

1. Subtract 20% of the recipient’s income from 30% of the payor’s income
2. Multiply the combined income by 40% and subtract the recipient’s income
3. The lower amount is the guideline maintenance figure

Income Cap and Deviations

The formula applies to the first $228,000 of the payor’s income as of 2025. For income above the cap, the court may award additional maintenance after considering factors like the parties’ standard of living, the recipient’s ability to become self-supporting, and the length of the marriage.

Courts can deviate from the formula if the guideline amount would be unjust or inappropriate. The judge must set forth reasons on the record when deviating from the formula.

Divorce Attorney in Manhattan – Law Office of Richard Roman Shum, Esq

Richard Shum

Richard Roman Shum is a lifelong New Yorker and resident of the Lower East Side. As a father, he understands the importance of having a clear and pragmatic approach to family law. The Lower East Side is one of Manhattan’s most diverse and culturally rich neighborhoods, and Mr. Shum provides representation that honors that integrity and diversity.

Mr. Shum brings a focused and detail-oriented approach to every case. He works with clients in family law and other legal areas, providing tailored legal consulting to both individuals and businesses. His approach emphasizes creating comprehensive strategies while maintaining a calm and professional demeanor throughout the legal process.

When Can Pendente Lite Orders Be Modified?

Pendente lite orders are temporary but can remain in effect for months or years if the divorce is contested. Either party can seek modification if circumstances change substantially during the divorce process.

What Constitutes a Substantial Change

A substantial change in circumstances may include a significant increase or decrease in either party’s income, loss of employment, a change in the children’s needs, or a change in living arrangements. The party seeking modification must file a motion demonstrating the changed circumstances.

How to Request a Modification

File a motion with the court explaining what has changed and why the current order should be modified. Provide updated financial documentation supporting your request. The court will schedule a hearing and review the new evidence before deciding whether to modify the temporary order.

Temporary vs. Final Orders

Pendente lite orders terminate when the final divorce judgment is issued. The final judgment may include different support amounts and arrangements based on more complete financial information and a fuller understanding of both parties’ circumstances.

Courts use different standards for modifying pendente lite orders versus final orders. Temporary orders may be modified more readily because they are meant to address immediate needs during an evolving situation.

How Do Pendente Lite Orders Affect High-Asset Divorces?

High-asset divorces involve complicated financial considerations that affect pendente lite relief. When substantial assets are at stake, temporary orders must address business interests, investment portfolios, and multiple properties.

Valuation Challenges

Accurate valuation of assets becomes critical in high-asset cases. Business interests, investment accounts, and real estate holdings require professional analysis. The court may order temporary support based on preliminary valuations while more detailed appraisals are completed.

Protecting Business Interests

Pendente lite orders can protect operating businesses from disruption during the divorce. The court may restrict either spouse from making major business decisions without court approval or the other spouse’s consent. These protective orders ensure business value is preserved for the final property division.

Asset Concealment Concerns

High-asset cases carry a greater risk of asset concealment. One spouse may attempt to hide assets, transfer property to third parties, or undervalue holdings. Pendente lite orders can freeze accounts, require full disclosure, and impose penalties for non-compliance.

Lifestyle Maintenance

The marital standard of living in high-asset marriages may be substantial. Temporary maintenance must reflect the lifestyle established during the marriage. This can include support for housing, private school tuition, household staff, and other significant expenses.

How Do Tax Laws Affect Pendente Lite Support?

The Tax Cuts and Jobs Act changed the federal tax treatment of alimony/maintenance based on when the divorce or separation instrument is executed. In some cases, whether a pre-2019 instrument is later modified with an express adoption of the new rule.

No Tax Deduction for the Payor

Under current law, the spouse paying maintenance cannot deduct those payments on their federal income tax return. Previously, maintenance payments were tax-deductible for the payor, reducing their tax burden.

No Taxable Income for the Recipient

The spouse receiving maintenance does not report those payments as taxable income. This is a significant benefit for the recipient compared to the old law, which treated maintenance as taxable income.

Impact on Support Calculations

Courts may consider these tax implications when calculating support amounts. The lack of a tax deduction for the payor means the after-tax cost is higher. Judges may adjust support amounts to account for this change when determining what is fair and appropriate.

Pre-2019 Divorces

Divorce or separation instruments executed on or before December 31, 2018, generally follow the prior federal tax treatment (deductible to the payor and includable to the recipient), unless the instrument is modified after 2018 and the modification expressly provides that the post-2018 (no deduction/no income) treatment applies.

Key Takeaway: Since 2019, temporary maintenance is not tax-deductible for the payor and not taxable income for the recipient under federal law, changing the financial calculations for both parties and potentially affecting the support amounts courts consider appropriate.

What Evidence Strengthens a Pendente Lite Motion?

The strength of your pendente lite motion depends on the quality and completeness of your evidence. Courts require substantial documentation to support any request for temporary relief.

Financial Documentation

Gather recent pay stubs covering at least the past three months. Include tax returns from the last two years. Bank statements should cover several months and show both income deposits and regular expenses. Investment account statements demonstrate asset holdings and income from investments.

If you are self-employed, provide profit and loss statements, business tax returns, and bank statements for business accounts. The court needs to see the full picture of income and expenses.

Expense Records

Document your monthly expenses in detail. Include mortgage or rent payments, utilities, insurance premiums, car payments, food costs, medical expenses, and children’s expenses. Keep receipts and canceled checks that support your expense claims.

Create a comprehensive list showing how much you need each month to maintain a reasonable standard of living. Be honest and realistic about your expenses. Inflated expense claims can damage your credibility.

Evidence of Standard of Living

Show what lifestyle you maintained during the marriage. Credit card statements can demonstrate spending patterns. Photos or documentation of your home, vehicles, and other significant assets help establish the marital standard of living.

Evidence of Need

If you need exclusive use of the home, document why shared living is unworkable. This might include police reports, orders of protection, or testimony about ongoing conflict. For custody matters, provide evidence of your involvement in the children’s lives and your ability to meet their needs.

How Long Do Pendente Lite Orders Remain in Effect?

Pendente lite orders are temporary by definition. They remain in effect until specific events occur that terminate the temporary arrangements.

Termination Upon Final Judgment

The most common endpoint is the final divorce judgment. Once the court issues a final decree, the pendente lite orders automatically terminate. The final judgment will include permanent orders addressing support, custody, and property division.

Modification Before Final Judgment

Before the divorce is finalized, either party can seek modification if circumstances change substantially. A modification motion can result in a new temporary order that replaces the original pendente lite arrangement.

Settlement Agreements

If the parties reach a settlement agreement, they can negotiate different terms than the pendente lite order provided. The court must approve any settlement, but parties have the flexibility to structure their own agreements.

Duration of Divorce Cases

New York divorce cases vary greatly in duration. Uncontested divorces may be resolved in a few months. Contested divorces involving complex financial issues or custody disputes can take one to three years or longer. Pendente lite orders remain in force throughout this period.

Case Type	Typical Duration	Pendente Lite Period
Uncontested divorce	3-6 months	Short pendente lite period
Contested divorce (simple)	9-18 months	Extended temporary orders
High-conflict or complex divorce	2-3+ years	Long-term pendente lite arrangements

Key Takeaway: Pendente lite orders remain in effect from the time they are issued until the final divorce judgment is entered, which can range from a few months for uncontested cases to several years for contested divorces, though either party can seek modification during this period if circumstances change substantially.

What Common Mistakes Weaken Pendente Lite Motions?

Several common errors can undermine your pendente lite motion and result in less favorable temporary relief. Understanding these pitfalls helps you avoid them.

Incomplete Financial Disclosure

Failing to provide complete financial information is the most common mistake. Missing documents, incomplete bank statements, or failure to disclose all sources of income can delay the process and harm your credibility with the court.

Courts require full transparency. If you discover additional financial information after filing, supplement your disclosure immediately rather than risk accusations of hiding assets or income.

Unrealistic Expense Claims

Inflating your expenses to request higher support backfires when the court reviews your claims. List only legitimate, necessary expenses. Include documentation supporting major expense items.

If your claimed expenses exceed your actual spending during the marriage, the court will question your credibility. Base your expense projections on your actual spending patterns.

Poor Timing

Delaying your motion can cause unnecessary financial hardship. If you need temporary support, file promptly after the divorce action is commenced. The longer you wait, the more difficult your financial situation becomes.

However, filing prematurely without adequate preparation and documentation can also be problematic. Balance the need for prompt relief with the requirement for thorough preparation.

Lack of Legal Representation

Attempting to handle pendente lite motions without an attorney often leads to procedural errors and missed opportunities. The motion papers must comply with specific court rules. The financial calculations can be challenging, particularly when both maintenance and child support are at issue.

An experienced divorce attorney can ensure your motion is properly prepared, filed, and presented to maximize your chances of obtaining appropriate temporary relief.

Get Help from a Divorce Attorney in Manhattan

Pendente lite orders directly affect your finances and living arrangements during divorce. Without fair temporary support, you may struggle to pay rent, maintain health insurance, or meet your children’s needs. The temporary arrangements established through these orders can also influence negotiations and the final settlement.

Richard Roman Shum handles divorce cases throughout Manhattan and New York City. The Law Office of Richard Roman Shum, Esq, works with clients to prepare comprehensive pendente lite motions with thorough financial documentation. We appear at hearings at the New York County Supreme Court at 60 Centre Street and advocate for temporary relief that reflects your needs and the marital standard of living.

Call the Law Office of Richard Roman Shum, Esq at (646) 259-3416 for a consultation. Our office on the Lower East Side serves clients throughout Manhattan, including those in surrounding neighborhoods and across New York City. 

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-pendente-lite/

Legal Separation vs. Divorce in New York

In New York, couples facing marital difficulties can choose between legal separation and divorce. Legal separation allows spouses to live apart while remaining legally married, which can address financial and personal issues without fully ending the marriage. Divorce represents the complete legal dissolution of the marriage. However, both options involve complicated legal requirements, and major exceptions exist, such as the ability to convert a separation into a divorce or the option to reconcile during separation.

At the Law Office of Richard Roman Shum, Esq., Manhattan divorce lawyer Richard Roman Shum helps couples throughout Manhattan and New York City understand their options. Whether you need guidance on divorce or legal separation, Richard Roman Shum can explain how each path affects your assets, children, and future.

This guide explains what legal separation means in New York, how it differs from divorce, the requirements for each option, and when you might choose one over the other. You will also learn about the conversion process from separation to divorce and the steps involved in filing for either option. Call the Law Office of Richard Roman Shum, Esq. at (646) 259-3416 to discuss your situation.

What Is Legal Separation in New York?

Legal separation in New York allows married couples to live apart while remaining legally married. It can be established either (1) by a written separation agreement signed and properly acknowledged, typically before a notary; or (2) by a court “judgment of separation” issued in a separation case. The agreement outlines each spouse’s rights and responsibilities during the separation period, including child custody, support payments, and division of assets.

Unlike simply living in different homes, a written separation agreement can create a legally binding contract. If one spouse violates the agreement’s terms, the other may be able to enforce the agreement in court. Issues like custody/support may also be addressed through the appropriate court process, depending on what relief is sought. This formal structure provides protection that informal separations do not offer.

Richard Roman Shum can discuss whether legal separation fits your circumstances and what terms should be included in your agreement.

Legal Requirements for a Separation Agreement

A separation agreement in New York must meet specific legal requirements to be valid and enforceable. Both parties must enter into the agreement voluntarily, without coercion or undue influence from the other spouse. The agreement must be in writing and signed by both spouses in the presence of a notary public.

The agreement should comprehensively cover all relevant aspects of the separation. This includes division of marital assets and liabilities, child custody arrangements, visitation schedules, child support, and spousal support (alimony). The terms must be fair and reasonable to both parties. An agreement that heavily favors one spouse may be challenged in court and potentially invalidated.

Working with an attorney when drafting a separation agreement helps ensure that all necessary elements are included and that the document complies with New York law. An attorney can also identify potential issues that might arise later and address them in the agreement’s terms.

How to File for Legal Separation in NY

Filing for legal separation in New York involves several steps. Your and your spouse’s attorney can draft a separation agreement that meets all legal requirements and addresses your specific marital situation. Both spouses should then review the agreement thoroughly and negotiate any necessary changes.

Once both parties agree on the terms, they must sign the agreement in front of a notary public. While not required, spouses may choose to file the signed and notarized agreement with the county clerk’s office. Filing creates a formal record of the separation, which can be beneficial in future legal proceedings, including a potential divorce.

After the agreement is executed, both spouses must follow the terms outlined in the document. Violations of the agreement can be addressed through legal action in family court.

Required Documents and Process

The separation agreement should identify the parties and address property/debt, custody/parenting time, child support, and spousal support as applicable. If parties choose to file the agreement (or need to file it for a conversion divorce), it is typically filed/recorded with the county clerk, and fees depend on the filing method and county. For example, in New York County, the county clerk lists an Index Number fee of $210 (and other fees may apply in matrimonial matters, such as an RJI fee).

If you choose not to file the agreement with the court, you should still keep multiple signed copies in a safe place. The agreement may still be binding as a contract. However, if you later want to use the separation agreement as the basis for a conversion divorce (DRL § 170(6)), New York’s process generally requires proof that the agreement (or an authorized memorandum of it) was filed with the appropriate county clerk.

Divorce Attorney in Manhattan – Law Office of Richard Roman Shum, Esq.

Richard Roman Shum, Esq.

Richard Roman Shum is a lifelong New Yorker and Manhattan divorce attorney with over 15 years of legal experience. Raised in the Lower East Side, one of Manhattan’s most diverse neighborhoods, he understands the unique challenges that New York City families face during separation and divorce. As a father, he brings a personal understanding of family law matters and the importance of protecting what matters most to his clients.

Richard Roman Shum provides representation in divorce, legal separation, child custody, spousal support, and property division cases. He handles both contested and uncontested matters throughout Manhattan and New York City. Clients value his focused, calm, and pragmatic approach to resolving complicated family law issues. Whether through negotiation or litigation, Richard Roman Shum works to achieve outcomes that align with his clients’ goals while minimizing unnecessary conflict.

What Is Divorce in New York?

Divorce in New York is the legal dissolution of a marriage. It terminates the marital relationship under the law and permits both spouses to remarry. The divorce process includes court proceedings where issues such as asset division, child custody, visitation rights, and support are decided.

New York recognizes both fault-based and no-fault grounds for divorce. The most common no-fault ground is an irretrievable breakdown of the relationship for at least six months. While it does not require proving wrongdoing, New York courts generally require that economic issues (including property/debt division and issues relating to custody/support) be resolved before the court will grant a divorce on this ground. Fault-based grounds include cruel and inhuman treatment, abandonment, imprisonment, adultery, and others.

Divorce proceedings aim to settle disputes between spouses in a manner that is fair and equitable. The court considers each party’s circumstances and distributes responsibilities and assets based on what is reasonable given the specific facts of the case.

Grounds for Divorce in New York

New York State recognizes seven legal grounds for divorce. Each provides a legally acceptable reason for dissolving a marriage.

The most commonly used ground is irretrievable breakdown of the relationship for a period of at least six months. Often called no-fault divorce, this ground requires only that one spouse declare the relationship has broken down irretrievably for at least six months. This option avoids the need to prove fault and can simplify the divorce process.

Fault-based grounds include cruel and inhuman treatment, which involves treatment by one spouse that endangers the physical or mental well-being of the other, making it unsafe to continue living together. Abandonment can be actual (physical departure from the home for at least one year) or constructive (refusing to engage in sexual relations for at least one year).

Imprisonment is a ground for divorce if one spouse has been imprisoned for three or more consecutive years after the marriage began. Adultery can serve as a ground, though proving it typically requires evidence from someone other than the spouse.

Two additional grounds involve living apart under a separation agreement or a separation judgment. Under DRL § 170 (6) and (5), the required living-apart period and terminology depend on the version of the statute in effect: the law text reflects a 6-month period until February 17, 2026, and 1 year starting February 17, 2026, and the filing/spousal-performance requirements must also be satisfied.

Ground for Divorce	Description	Key Requirement
Irretrievable Breakdown (No-Fault)	The relationship has broken down irretrievably	At least 6 months
Cruel and Inhuman Treatment	Treatment endangering physical or mental well-being	Proof of endangerment
Abandonment	Physical departure or refusal of sexual relations	At least 1 year
Imprisonment	Spouse imprisoned after marriage	3+ consecutive years
Adultery	Extramarital affair	Evidence from a third party
Legal Separation Agreement	Lived separate and apart pursuant to a properly acknowledged separation agreement (and filing requirements may apply)	6+ months until Feb 17, 2026; 1+ year starting Feb 17, 2026, plus substantial compliance
Judgment of Separation	Lived apart pursuant to a decree or judgment of separation	6+ months until Feb 17, 2026; 1+ year starting Feb 17, 2026, plus substantial compliance

Types of Divorce Proceedings in NY

Divorces in New York fall into two main categories: uncontested and contested. Knowing these types can help you prepare for what lies ahead.

In an uncontested divorce, both spouses agree on all major aspects of the divorce, including asset division, child custody, visitation, and spousal support. This type typically involves a settlement agreement where the terms are outlined and agreed upon before filing. Uncontested divorces are generally faster, less costly, and less stressful than contested divorces because they do not require a trial.

A contested divorce occurs when spouses cannot agree on one or more key aspects of the divorce. Common areas of dispute include asset division, responsibility for marital debts, child custody arrangements, and sometimes even the grounds for divorce itself. Contested divorces usually require more extensive legal intervention, including court appearances, discovery proceedings, mediation sessions, and potentially a trial. This makes them more complicated, time-consuming, and expensive.

Key Takeaway: Uncontested divorces involve agreement on all major issues and are typically faster and less expensive. Contested divorces involve disagreement on one or more key issues and require court intervention, making them more difficult and costly.

After Legal Separation: The Path to Reconciliation or Divorce

Legal separation is not always a step to divorce. For many couples, it represents a crossroads where they can choose between reconciling or moving forward with the dissolution of their marriage. This structured period offers time and space to work through personal challenges while maintaining legal protections.

The Option for Reconciliation

If both spouses decide to reconcile, they can formally terminate their separation. This is usually accomplished by drafting a new written agreement, signed and notarized by both parties, that revokes the original separation agreement. This process allows the couple to resume their marital relationship with confidence, knowing that their legal and financial interests were protected during their time apart.

Reconciliation after legal separation is relatively straightforward under New York law. The key is ensuring that both parties agree to revoke the separation agreement and that they document this decision properly. Many couples find that the flexibility to reconcile makes legal separation a useful tool for reassessing the marriage without closing the door permanently.

From Separation to Divorce: The Conversion Process

A conversion divorce transforms the legal separation into a final divorce decree. Its main advantages include simplicity and speed, since property division, custody, and support issues are already addressed in the separation agreement. There is reduced conflict because there is no need to renegotiate terms or prove fault grounds such as cruelty or abandonment. The process is also more cost-effective, with legal expenses and court appearances generally lower than in a contested divorce.

The separation agreement essentially serves as the blueprint for the final judgment of divorce. This structured approach provides both spouses with clarity and a well-defined outcome if reconciliation is not possible.

Key Takeaway: Legal separation in New York allows couples to reconcile by revoking the separation agreement or to convert to divorce after one year. Conversion divorce under Section 170(6) uses the existing separation agreement as the basis for the divorce, making the process faster and less contentious than starting a new divorce case.

The Divorce Process in New York

The divorce process in New York follows a structured sequence designed to provide a clear legal pathway to dissolving a marriage. Understanding each phase and its requirements can help you avoid complications.

Filing for Divorce: Steps Involved

Filing for divorce in New York involves several important steps. First, you must meet residency requirements. New York has multiple ways to qualify, including:

• Either spouse has been living in New York continuously for at least two years
• Either spouse has been living in New York continuously for at least one year, plus certain connections to New York (such as being married in New York, living in New York as a married couple, or the grounds arising in New York); or 
• Both spouses are New York residents when the case starts, and the grounds arise in New York.

Next, you must establish grounds for divorce. New York law requires a legally acceptable reason or ground for divorce, which can be either no-fault (irretrievable breakdown for six months) or fault-based (such as cruelty, abandonment, or adultery).

You then prepare the necessary documents. The divorce process begins by filing a Summons With Notice or Summons and Complaint with the County Clerk’s Office in the county where either spouse resides. The Manhattan Supreme Court handles divorce cases filed in New York County.

A filing fee is required to process the divorce documents. This fee can be waived based on financial hardship. If the spouses have agreed on the terms of the divorce, a Settlement Agreement should be filed along with the divorce paperwork.

Serving and Responding to Divorce Papers

Once the divorce papers are filed, they must be legally served to the other spouse (the defendant). Service of process must occur within 120 days of the filing date. The papers must be served by someone other than the plaintiff, typically a professional process server, and the person serving must be over 18 years old.

After being served, the defendant has a specific time frame to respond. Under CPLR 320, it is generally 20 days after service of the summons, but 30 days after service is complete when service is made by certain methods. The response can either contest the grounds of the divorce or agree to them. Failure to respond can result in a default judgment against the defendant.

Key Stages of a Divorce Trial

If the divorce is contested and cannot be resolved through mediation or negotiation, it proceeds to trial. The key stages include discovery, where both parties exchange information and documents related to finances, assets, and other relevant matters. This stage can involve written questions (interrogatories), document requests, and depositions.

Pre-trial motions and hearings may address preliminary issues such as temporary child custody, spousal support, or attorneys’ fees. During the trial, both parties present arguments, evidence, and witness testimonies. The judge hears the case and makes decisions on all contested issues.

The final judgment of divorce is issued, which includes all the judge’s decisions on the divorce matters. This judgment is binding and enforceable.

Key Takeaway: Filing for divorce in New York requires meeting residency requirements, establishing grounds, filing documents with the county clerk, paying a filing fee, and serving papers on the other spouse. Contested divorces proceed through discovery, pre-trial motions, trial, and final judgment.

Pros and Cons of Legal Separation vs. Divorce

Knowing the benefits and challenges of each option can help you make an informed decision about which path is right for your situation.

Benefits of Choosing Legal Separation

Legal separation allows spouses to remain married for purposes of retaining family health insurance plans or other financial benefits that require a legal marriage. Some couples choose legal separation over divorce due to religious beliefs or moral values that discourage or prohibit divorce. Legal separation can also serve as a period of time for couples to live apart and evaluate whether they want to proceed with divorce or reconcile.

Challenges Associated with Legal Separation

Drafting a legal separation agreement often involves negotiations and hiring legal counsel, which can be as complicated and costly as divorce proceedings. Legally separated couples are still legally married, which means they cannot remarry. This might complicate entering into new relationships. Living in a state of legal separation might also prolong the emotional stress and uncertainty that comes with unresolved marital issues.

Advantages of Opting for Divorce

Divorce provides finality to the marital relationship, allowing individuals to move forward with their lives independently. One of the most significant legal distinctions is that divorce allows each individual to remarry. Divorce settles all legal issues definitively, including property division, custody, and spousal support, and these decisions are enforceable by court order. Divorce can also provide a clearer separation of financial ties, which can simplify financial planning and obligations moving forward.

Potential Drawbacks of Divorce Proceedings

Divorce proceedings can be expensive and time-consuming, especially if the divorce is contested and involves complex asset divisions or custody disputes. Divorce can have a significant emotional toll on all family members, including children, and can lead to long-term psychological effects. Divorce proceedings and records are generally public, which might concern those who value privacy regarding personal and financial matters. Divorce can be particularly challenging for children, affecting their emotional well-being and stability.

Key Takeaway: Legal separation preserves health insurance and other marital benefits but prevents remarriage and may prolong emotional stress. Divorce provides finality and allows remarriage, but can be expensive, time-consuming, and emotionally difficult for all family members.

Factors to Consider When Deciding Between Separation and Divorce

Making the decision between legal separation and divorce depends on various factors specific to your situation.

Assess your remaining commitment to the relationship. If there is a possibility of reconciliation or if you prefer a trial period apart without legally ending the marriage, legal separation may be suitable. This option allows you to address marital issues while retaining certain legal and financial protections.

Consider the severity of your marital problems. If the relationship has become unjustifiable due to issues like abuse or infidelity, divorce might be the more appropriate choice. Divorce provides a definitive end to the marriage, allowing both individuals to pursue independent lives and healing.

Financial aspects are critical in this decision. Legal separation can preserve benefits such as healthcare coverage and a favorable tax status, which might be advantageous during a temporary separation. Conversely, divorce facilitates a more definitive financial separation, dividing assets and liabilities to give both parties a clear financial start.

The well-being of any children involved should be a priority. Both legal separation and divorce affect children differently, but you should consider their emotional needs against the backdrop of the current home environment. Sometimes a stable, if separate, environment may support children better than a conflicted joint one.

Factors to consider include:

• Level of commitment to potentially reconciling the relationship
• Severity and nature of marital problems (abuse, infidelity, irreconcilable differences)
• Financial implications (health insurance, tax benefits, asset division)
• Impact on children’s emotional well-being and stability
• Religious or moral beliefs about divorce
• Timeline for resolving marital issues
• Cost and complexity of each option

Carefully weighing these factors can help you make a more informed decision that aligns with your personal circumstances and long-term well-being.

Key Takeaway: Choosing between legal separation and divorce requires evaluating your commitment to the relationship, the severity of marital problems, financial implications, and the impact on children. Legal separation preserves some benefits and allows for reconciliation, while divorce provides finality and a complete legal separation.

Get Help from a Divorce Attorney in Manhattan

Deciding whether to pursue legal separation or divorce in New York involves legal, financial, and emotional considerations. Each path has distinct consequences, from how assets are divided to the future of your family relationships. Understanding New York family law and how it applies to your specific situation is essential to making informed decisions.

At the Law Office of Richard Roman Shum, Esq., clients receive personalized guidance on whether legal separation or divorce is more suitable for their circumstances. Richard Roman Shum handles cases heard at the Manhattan Supreme Court and Family Court, addressing property division, child custody, spousal support, and separation agreements.

Call the Law Office of Richard Roman Shum, Esq. at (646) 259-3416 for a consultation. The office is located on the Lower East Side at 20 Clinton Street, serving families across Manhattan and New York City. 

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/legal-separation-vs-divorce/

New York Child Support: What Every Divorcing Parent Needs to Know

New York parents going through a divorce often have the same questions: how child support is determined, what expenses it covers, and how long the obligation lasts. New York’s child support system is structured by statute, and courts generally apply the Child Support Standards Act (CSSA) to set a baseline support amount based on the parents’ combined income and the number of children involved. Support generally continues until a child turns 21, unless the child is legally emancipated earlier through marriage, military service, or self-support.

At the Law Office of Richard Roman Shum, Esq., Manhattan child support lawyer Richard Roman Shum helps parents understand their financial obligations and protect their children’s best interests. Our experienced NYC divorce attorney guides clients through CSSA calculations, modification petitions, and enforcement actions throughout Manhattan and New York. Richard Roman Shum represents parents in New York City family courts and provides clear guidance on complicatedsupport issues.

This guide explains how child support is calculated under the CSSA, what additional expenses may be required, when support obligations end, and how to modify existing orders. You will also learn about enforcement options when a parent refuses to pay and how to establish fair agreements outside the standard guidelines. Call the Law Office of Richard Roman Shum, Esq. at (646) 259-3416 to discuss your child support case.

What Are the Child Support Rules in New York?

New York calculates child support using the Child Support Standards Act (CSSA). The court determines combined parental income, applies the statutory percentage (based on the number of children) to compute the basic child support obligation, and then prorates that obligation between the parents according to each parent’s share of the combined income; the non-custodial parent generally pays their pro-rata share to the custodial parent.

The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. The CSSA applies the percentage formula to combined parental income up to the statutory “cap” amount set in the annually updated Child Support Standards Chart (the cap is $183,000 until March 1, 2026). For combined parental income above that cap, the court determines additional support by considering statutory factors and/or applying the child support percentage.

Courts can also order the non-custodial parent to contribute to healthcare costs, educational expenses, and child care. These payments are separate from the basic child support obligation and are typically divided between parents based on their income proportions.

When Does Child Support End in New York?

Child support in New York continues until the child reaches age 21. This obligation can end earlier if the child becomes emancipated.

Emancipation occurs when a child under 21 gets married, joins the military, or becomes self-supporting before turning 21. A child between the ages of 17 and 21 who moves out of the custodial parent’s home and refuses to obey reasonable parental commands may also be considered emancipated. Courts evaluate these situations based on the child’s level of independence and financial self-sufficiency.

Parents remain legally responsible for supporting their children unless one of these emancipation conditions is met. The obligation does not automatically end when a child turns 18, as it does in many other states.

What Extra Costs Does Child Support Cover in New York?

Basic child support covers food, clothing, and shelter. New York courts can require additional payments for specific expenses that support the child’s well-being and development.

Health Insurance and Medical Expenses

The non-custodial parent may be required to maintain health insurance coverage for the child. Courts often order parents to share unreimbursed medical costs such as co-pays, prescription medications, and specialist visits. The division of these expenses is typically based on each parent’s proportional share of the combined income.

Child Care and Education Costs

Child care expenses for daycare or after-school programs are usually divided between parents according to their income ratios. Educational costs can include private school tuition, tutoring services, school supplies, uniforms, and related fees. Courts consider the child’s standard of living before the separation when determining whether to order these payments.

Extracurricular Activities

Courts may require parents to contribute to costs for sports teams, music lessons, art classes, or school clubs. These expenses are evaluated case by case based on the child’s interests and the family’s financial circumstances.

Child Support Attorney in Manhattan – Law Office of Richard Roman Shum, Esq.

Richard Shum, Esq.

Richard Roman Shum is a lifelong New Yorker and resident of the Lower East Side in Manhattan. He has dedicated his career to helping New York families navigate family law matters with a clear, pragmatic approach. As a father, he understands the importance of protecting children’s best interests while advocating for fair financial arrangements.

Richard Roman Shum provides representation and counsel for families throughout Manhattan’s diverse neighborhoods. His focused and detail-oriented approach helps clients resolve child support disputes, modification requests, and enforcement actions efficiently. Parents value his calm, professional demeanor and comprehensive strategies for achieving beneficial outcomes.

How Is Child Support Calculated Under the CSSA Formula?

The Child Support Standards Act uses a formula that assigns each parent a percentage share of the combined household income. This percentage determines how much each parent contributes to supporting the children.

Under the CSSA, income starts with gross income as should have been reported on the most recent federal income tax return, plus certain additions, including, for example: 

• Workers’ compensation
• Disability
• Unemployment
• Social Security
• Veterans benefits
• Pensions/retirement
• Fellowships/stipends
• Annuities, and
• Certain maintenance/alimony. 

The court may also impute income from other available resources, including money, goods, or services provided by relatives and friends, or where a parent has reduced income to avoid support. The statute also specifies deductions before applying the formula, including (among others) FICA taxes actually paid, NYC/Yonkers income taxes actually paid, child support actually paid for other children not in the case, certain maintenance/alimony actually paid, and public assistance/SSI.

After calculating the combined income and applying allowable deductions, the court multiplies the result by the applicable percentage. For one child, the percentage is 17%. For two children, it is 25%. For three children, it is 29%. For four children, it is 31%. For five or more children, the percentage is at least 35%.

For parents with combined income exceeding $183,000 under the current chart, the court determines the amount of child support on income above that cap by considering the statutory factors and/or applying the child support percentage.

Number of Children	Percentage of Combined Income
1 child	17%
2 children	25%
3 children	29%
4 children	31%
5 or more children	At least 35%

Can Parents Agree to Different Child Support Amounts?

Parents cannot completely waive child support in New York because children have the right to benefit from both parents’ income. However, parents can reach agreements that deviate from the CSSA guidelines if specific requirements are met.

For an agreement to be valid, both parents must knowingly and voluntarily consent to the arrangement. The agreement must acknowledge the CSSA guidelines and include a statement that a support order based on the guidelines would normally be appropriate. If the agreed amount differs from what the CSSA formula would produce, the agreement must state what the CSSA amount would have been and explain the reasons for the deviation.

If the agreement does not meet these requirements, the court will establish child support based on the standard CSSA calculation. Parents should work with legal counsel to ensure their agreement is properly documented and enforceable.

Key Takeaway: Parents can agree to child support amounts that differ from CSSA guidelines if both consent knowingly, the agreement acknowledges the standard guidelines, states what the CSSA amount would be, and explains the reason for any deviation. Agreements that fail to meet these requirements result in standard CSSA calculations.

The Law Office of Richard Roman Shum, Esq. can help draft a valid child support agreement that protects your child’s interests and complies with New York requirements.

What Are Valid Reasons for Modifying a Child Support Order?

A substantial change in circumstances allows either parent to petition for modification of a child support order. Valid reasons include job loss, significant income changes, or changes in custody arrangements.

New York law permits modification if three years have passed since the last order was entered or if either parent’s income has changed by 15% or more since the last calculation. A parent who loses employment, experiences a substantial pay reduction, or receives a significant raise may qualify for modification.

Changes in the child’s needs can also support modification. If medical expenses increase, educational costs change, or the child develops new needs requiring additional support, courts may adjust the order accordingly.

Either parent must file a modification petition with the court. The petition should include a statement explaining the changed circumstances and the proposed new support amount. Both parents receive notice and have the right to a hearing before the court makes a decision.

Child support amounts may also change through a Cost of Living Adjustment (COLA) process. Every two years, the Child Support Program automatically reviews child support orders to determine whether a COLA increase should apply, and the Support Collection Unit provides notice and a process to object. The COLA review process is separate from a court petition to modify based on “substantial change in circumstances” or the 3-year/15%-income-change rules.

What Happens When a Parent Refuses to Pay Child Support?

When a parent fails to pay court-ordered child support, New York provides several enforcement mechanisms to collect past-due amounts and compel future compliance.

Income Execution and Wage Garnishment

The Child Support Enforcement Unit can issue an income execution order that directs the non-paying parent’s employer to withhold child support directly from wages. This ensures payments are made automatically before the parent receives their paycheck.

Seizure of Benefits and Tax Refunds

The enforcement unit can intercept unemployment insurance benefits, workers’ compensation payments, and federal or state tax refunds to satisfy unpaid child support. These funds are redirected to the custodial parent to cover arrears.

Bank Account Levies

In cases of substantial unpaid support, the enforcement unit can seize funds directly from the non-paying parent’s bank accounts. This remedy is typically used when other collection methods have failed.

License Suspension and Incarceration

Parents who persistently refuse to pay may lose their driver’s license, professional licenses, or recreational licenses, such as hunting or fishing permits. In extreme cases, a parent can be held in contempt of court and sentenced to jail for willfully disobeying a support order.

Key Takeaway: New York enforces child support through wage garnishment, seizure of unemployment benefits and tax refunds, bank account levies, license suspension, and jail time for willful non-payment. These tools ensure children receive the financial support they are entitled to under court orders.

Contact the Law Office of Richard Roman Shum, Esq. if your child’s other parent is not paying court-ordered support and you need enforcement assistance.

What If Your Ex Is Under-Reporting Income?

If you suspect the other parent is earning more than they report, New York courts have the authority to investigate and impute income to that parent.

Income imputation is used when a parent appears to be unemployed or underemployed, deliberately to avoid paying child support. Courts examine the parents’ work history, education, skills, and available job opportunities in the area to determine their earning capacity.

If the court finds that a parent is capable of earning more than they currently report, it can base the child support calculation on the income they could be earning rather than what they claim to earn. This prevents parents from avoiding their obligations by deliberately remaining underemployed.

Evidence supporting income imputation can include the parent’s prior salary, educational credentials, professional licenses, and the availability of suitable employment in their field. Courts also consider whether the parent has a pattern of changing jobs or reducing hours shortly before or after child support proceedings.

Get Help from a Manhattan Child Support Attorney

Child support matters affect your child’s well-being and your financial future. Whether you are seeking to establish support, modify an existing order, or enforce payment, you need accurate calculations and strong legal representation.

Richard Roman Shum has helped parents throughout Manhattan navigate child support cases in New York Family Court. At the Law Office of Richard Roman Shum, Esq., our child support lawyers handle CSSA calculations, modification petitions, enforcement actions, and opt-out agreements. We represent clients at the Manhattan Family Court and work with the Support Collection Unit to resolve payment disputes and ensure children receive the financial support they deserve.Callthe Law Office of Richard Roman Shum, Esq. at (646) 259-3416 for a consultation. Our office serves families throughout Manhattan, the Lower East Side, and New York City. We will review your case, explain your rights and obligations, and develop a strategy to protect your child’s best interests.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/new-york-child-support-what-every-divorcing-parent-needs-to-know/

At What Age Can a Child Refuse to See a Parent

Family dynamics and legal considerations often intersect when questions about visitation arise. In New York, a child’s preferences may influence visitation arrangements, but the courts ultimately weigh these preferences alongside other factors to determine what serves the child’s best interests. This process can be complex, especially when a child resists or refuses visitation with one parent, raising emotional and legal challenges for families navigating these situations.

If you are facing issues related to visitation in New York, the Law Office of Richard Roman Shum, Esq. can provide personalized legal guidance. Our experienced Manhattan family law attorneys can help you understand your rights and advocate for solutions that prioritize the well-being of your family. Call us today at (646) 259-3416 to schedule a consultation and explore your options.

Legal Framework for Child Visitation in New York

Child visitation laws in New York are largely centered around the principle of the Best Interests of the Child. The courts evaluate various factors when making decisions about visitation, ensuring that the child’s physical, emotional, and psychological well-being is prioritized. Visitation is typically granted to the noncustodial parent unless it is deemed harmful to the child.

Visitation arrangements are often part of a larger custody agreement, where the courts outline how much time each parent will spend with the child. These decisions can be influenced by the child’s age, relationship with each parent, and the child’s preferences, though the latter is just one factor among many.

The court has the discretion to modify visitation schedules if circumstances change, such as if the child is old enough to express a preference, or if the child’s safety or emotional health is at risk. In cases where a child refuses to see a parent, the court may intervene to assess whether the refusal is based on a valid concern or if it is the result of parental alienation.

The Role of the Attorney for the Child (AFC)

In many custody and visitation cases, the court may assign an Attorney for the Child (AFC) to ensure that the child’s voice and interests are fully represented. The AFC is a licensed attorney with special training who is appointed by the state. Their responsibility is not to represent either parent, but rather to advocate for the child’s expressed wishes and, when necessary, their best interests.

An AFC becomes involved in situations such as:

• When parents or guardians are in conflict over custody or visitation.
• When allegations of abuse or neglect are raised.
• When a child is placed in foster care or requires additional supervision.
• When a minor faces juvenile delinquency or PINS (Persons in Need of Supervision) proceedings.

Once appointed, the AFC’s duties include:

• Meeting with the child to understand their wishes and perspectives.
• Explaining legal options in an age-appropriate way.
• Representing the child in all court hearings and advocating on their behalf.
• Reviewing case records, speaking with caregivers, and staying actively involved throughout the process.
• Maintaining regular communication and ensuring confidentiality, except in cases involving harm to the child or others.

It’s important to understand that while the AFC ensures the child’s voice is heard, the court has the final say on issues such as visitation or custody. The judge will consider the AFC’s advocacy, the child’s maturity, and the overall circumstances before making a decision. In cases where a child refuses to see a parent, the AFC plays a critical role by presenting the child’s wishes clearly and ensuring they are factored into the court’s determination.

Possible Reasons for a Child’s Visitation Refusal

A child’s refusal to visit a parent can stem from a variety of factors, and it’s important for the court to understand the root cause before making any decisions. Below are some common reasons why a child might resist visitation:

• Emotional and Psychological Factors: A child may experience fear, anxiety, or distress related to the visitation. This can be due to a variety of reasons, such as a parent’s behavior, past traumatic events, or a strained relationship. If a child has experienced neglect, abuse, or conflict during visits, it can lead to emotional withdrawal and a refusal to see the parent.
• Parental Alienation: In some cases, one parent may intentionally or unintentionally influence the child to reject the other parent. This behavior, known as parental alienation, can result in the child aligning with one parent while distancing themselves from the other. Courts are particularly concerned about this factor, as it can damage the parent-child relationship.
• Developmental and Age-Related Issues: Younger children may have a limited understanding of their family dynamics, which can influence their behavior during visits. For older children or teenagers, their increased independence and desire for autonomy can lead to reluctance to spend time with one parent, especially if there is a sense of conflict or discomfort.
• Changed Circumstances: Changes in a child’s life, such as moving to a new home, changing schools, or experiencing family tensions, can cause stress and make the child more reluctant to visit a parent. These transitions can sometimes exacerbate feelings of insecurity, leading to resistance toward visitation.
• Negative Experiences with the Noncustodial Parent: If the child has had negative interactions with the noncustodial parent, such as poor communication, neglect, or lack of support, they may refuse visitation. This refusal can also be influenced by the child’s perception of the noncustodial parent, shaped by past behavior or current circumstances.
• Conflicting Loyalties: In some cases, children may feel torn between parents, particularly if they sense that their rejection of one parent will hurt the other. This can be especially true in situations where there is high conflict between the parents or when one parent is pressuring the child to align with them.

Understanding these potential reasons is critical for courts when evaluating a child’s visitation refusal. In all cases, the primary consideration will always be the child’s best interests, which includes ensuring their emotional well-being and maintaining healthy relationships with both parents.

Manhattan Family Law Attorney Richard Roman Shum, Esq.

Richard Shum, Esq.

Richard Roman Shum is a dedicated Manhattan family law attorney with extensive experience helping clients navigate the financial and emotional challenges of divorce. A lifelong New Yorker and a father, Mr. Shum understands the unique challenges families face when making critical decisions during divorce, such as decisions about property, finances, and children. He provides clear, strategic counsel designed to protect his clients’ interests while guiding them through some of life’s most difficult transitions.

Admitted to practice in New York state courts and the U.S. District Courts for the Eastern and Southern Districts of New York, he is known for his results-oriented approach and commitment to safeguarding his clients’ wealth, privacy, and family dynamics. A graduate of Suffolk Law School (J.D., 2007), Emerson College (M.A., 2004), and Washington University (B.A., 1999), Mr. Shum offers the skill, discretion, and advocacy that individuals and families can trust.

Factors Courts Consider in Visitation Refusal Cases

When a child refuses visitation with a parent in New York, courts carefully analyze the situation to determine the underlying causes and assess what actions, if any, should be taken. The refusal of visitation is not taken lightly, as it directly affects the parent-child relationship and the stability of custody arrangements. Here are the key factors courts evaluate in such cases:

The Best Interests of the Child

The central consideration in any custody or visitation dispute is the best interests of the child. This overarching standard ensures that the child’s safety, stability, and well-being remain the court’s primary focus. In visitation refusal cases, the court assesses whether maintaining the current visitation schedule supports the child’s emotional and physical health or whether modifications are needed. Factors influencing this evaluation include the child’s relationship with each parent, the potential for harm, and the emotional impact of forcing or discontinuing visitation.

The court also considers whether ongoing visitation promotes the child’s sense of security and connection with both parents. Even if a child expresses a desire to refuse visitation, the court weighs this preference against other factors to ensure the decision prioritizes the child’s overall welfare.

The Child’s Safety and Well-Being

If a child refuses visitation, the court examines whether their safety or well-being is at risk during visits with the noncustodial parent. Allegations of abuse, neglect, or an unsafe living environment are taken seriously, and evidence such as police reports, medical records, or testimony may be reviewed. If concerns are substantiated, the court can impose measures such as supervised visitation or suspend visitation entirely until the issues are resolved.

Parental Conduct and Influence

The behavior of both parents is a critical factor in cases of visitation refusal. Courts investigate whether either parent has contributed to the child’s reluctance. For example, parental alienation—when one parent intentionally undermines the child’s relationship with the other parent—can lead to legal repercussions for the offending parent. Similarly, a noncustodial parent’s actions, such as inconsistency, neglect, or abusive behavior, are also scrutinized to determine whether they have played a role in the child’s refusal.

Age and Maturity of the Child

The child’s age and maturity significantly influence how the court evaluates their preferences. Younger children may lack the capacity to articulate valid reasons for refusing visitation, while older children, particularly teenagers, often have more developed reasoning abilities. Courts give more weight to the opinions of mature children but ultimately decide based on the child’s best interests rather than solely their expressed desires.

Underlying Reasons for Refusal

Understanding why a child refuses visitation is essential for determining an appropriate response. Common reasons include fear stemming from past negative experiences, discomfort with a parent’s new partner, or resentment toward a parent’s behavior during or after a divorce. External factors such as logistical challenges, school schedules, or extracurricular activities may also contribute to the refusal. The court examines these reasons to determine whether they are valid and require action or if they can be addressed through communication and mediation.

Evaluating these factors helps the court strike a balance between respecting the child’s concerns and ensuring their best interests are served. The outcome often depends on a comprehensive review of evidence, testimony, and the specific circumstances of the case.

When Can a Child’s Preference Influence Visitation?

In New York, there is no specific age at which a child’s preference becomes determinative in visitation matters. Instead, the court considers the child’s maturity, ability to articulate their reasoning, and the context of their preferences. Older children and teenagers generally have more influence on visitation decisions, particularly when their reasons align with their best interests.

To gauge a child’s preferences, judges often conduct in-camera interviews in their chambers, away from the influence of either parent. These private discussions allow the judge to explore the child’s feelings in a neutral and supportive environment. The child’s attorney or guardian ad litem is typically present to advocate for the child’s expressed wishes. However, the court’s ultimate decision is guided by what will serve the child’s overall well-being rather than being strictly tied to their preferences.

For example, a 16-year-old may express a desire to reduce visitation due to conflicts with the noncustodial parent’s household rules. While the court will listen to their concerns, it may encourage counseling or mediation to address underlying issues rather than eliminating visitation. Similarly, a younger child’s reluctance to visit might prompt an investigation into the custodial parent’s role in fostering or hindering the child’s relationship with the other parent.

Legal Consequences of Refusing Visitation

Refusal to comply with court-ordered visitation can lead to legal challenges, even when the refusal comes from the child rather than the custodial parent. New York courts expect custodial parents to make reasonable efforts to facilitate visitation and ensure the child’s compliance. However, when a child refuses, courts will evaluate the circumstances to determine whether the custodial parent has acted appropriately.

• Contempt of Court: If a court determines that the custodial parent has not made sufficient efforts to encourage the child to attend visitation, they may be found in contempt of court. While custodial parents are not required to physically force a child, they are expected to demonstrate clear attempts, such as discussing the importance of visitation, arranging transportation, and maintaining open communication with the noncustodial parent.
• Custody Modifications: If the court believes the custodial parent is fostering or allowing the child’s refusal, it may consider modifying custody arrangements. This could include awarding the noncustodial parent more parenting time or even primary custody if the interference significantly impacts the child’s relationship with the noncustodial parent.
• Parental Alienation Concerns: Courts closely examine whether the custodial parent has influenced or encouraged the child’s refusal to visit. If evidence of parental alienation is found, such as making negative comments about the other parent or creating logistical barriers, the custodial parent could face sanctions or adjustments to custody.
• Legitimate Refusal by the Child: In cases where the child’s refusal stems from legitimate concerns, such as safety issues or emotional distress caused by the noncustodial parent, the custodial parent must seek court intervention. Filing a motion to modify visitation ensures that concerns are addressed legally and avoids accusations of non-compliance.

Courts balance the child’s preferences, the custodial parent’s efforts, and the noncustodial parent’s rights when addressing visitation refusals. Proactive communication and legal action are essential to navigate these situations without escalating conflict or violating court orders.

Legal Consequence	Court’s possible action	Custodial parent’s responsibility
Contempt of Court	Custodial parent may be found in contempt if insufficient efforts are made to enforce visitation.	Show attempts to encourage visitation through discussions, arranging transportation, and communication.
Custody Modifications	Court may alter custody, granting more time or even primary custody to the noncustodial parent.	Avoid fostering refusal and support the child’s relationship with both parents.
Parental Alienation Concerns	Court may impose sanctions or adjust custody if alienation is proven.	Refrain from negative comments and remove barriers to visitation.
Legitimate Refusal by the Child	Court may consider safety or emotional well-being concerns and modify visitation legally.	File a motion to modify visitation rather than refusing compliance.

Steps to Address Visitation Refusal

Visitation refusal, whether from the child or influenced by a parent, requires a thoughtful approach to resolve the issue while preserving family relationships and adhering to legal obligations. Addressing visitation refusal involves proactive steps to understand the underlying causes, maintain compliance with court orders, and, if necessary, seek professional or legal intervention.

Communicate with the Child

Open and honest communication with the child is often the first step in addressing visitation refusal. Parents should calmly discuss the child’s feelings about visitation to uncover potential reasons for their reluctance. The child may be experiencing anxiety, resentment, or scheduling conflicts that make visitation challenging.

Acknowledging a child’s emotions and validating their concerns helps create a supportive environment that encourages cooperation. For instance, a child might resist visits due to a fear of disrupting their social or extracurricular commitments. Adjusting the schedule or discussing compromises with the noncustodial parent can often alleviate these concerns.

Collaborate with the Other Parent

Cooperation between parents is crucial when addressing visitation refusal. Open lines of communication can help identify solutions that work for both parents and the child. For example, parents may agree to modify visitation arrangements temporarily to address specific challenges, such as adjusting pick-up and drop-off times or allowing virtual visits during busy periods.

If direct communication is difficult due to conflict, involving a neutral third party, such as a mediator, can help parents collaborate effectively while keeping the child’s best interests at the forefront.

Seek Professional Counseling

In cases where emotional or relational issues are the root of visitation refusal, family or individual counseling can be a valuable tool. A therapist can help the child articulate their concerns in a safe setting and provide strategies to rebuild trust and strengthen the parent-child relationship.

Counseling is particularly effective in situations where the child’s refusal stems from past conflicts, miscommunication, or feelings of alienation. Involving a neutral professional can also provide reassurance to the court that parents are actively addressing the problem.

Foster a Positive Relationship Between the Child and Both Parents

Ultimately, the goal is to ensure the child maintains a healthy relationship with both parents. Parents should avoid speaking negatively about one another in front of the child and instead emphasize the value of spending time with both sides of the family. This cooperative approach reduces tension and encourages the child to feel more comfortable with visitation.

Addressing visitation refusal requires patience, empathy, and a commitment to resolving underlying issues. Focusing on the child’s well-being and taking proactive steps allows parents to work toward a resolution that benefits everyone involved while maintaining compliance with court orders.

Compassionate Legal Guidance from the Law Office of Richard Roman Shum, Esq.

Visitation issues can be emotionally and legally challenging, especially when a child’s preferences are involved. These situations require thoughtful handling to ensure the child’s well-being while protecting your parental rights. The Law Office of Richard Roman Shum, Esq. is here to help families in Manhattan find practical and effective solutions to visitation matters.

Our dedicated attorneys understand the complexities of visitation disputes and work closely with you to address concerns, advocate for fair outcomes, and provide personalized guidance every step of the way. Whether you are dealing with visitation refusals or seeking modifications, our team is committed to supporting you throughout the process.

Call us today at (646) 259-3416 to schedule a consultation. Let us help you move forward with confidence, knowing your family’s needs are our priority.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/at-what-age-can-a-child-refuse-to-see-a-parent/