If the IRS is garnishing my paycheck, am I eligible for a child support decrease?

Q: I've been paying child support for 13 years, my ex requested an increase in court, I'm already giving her 852$ per month, and now because I owe 58,000$ in back taxes, the IRS is garnishing my paycheck for 800$ per month, now that's over 1600$ per month, between child support and IRS garneshment on a 95,000$ per year salary and I still have my regular bills to pay. Now I cannot survive financially, so am I eligible for a decrese in child support payments due to this hardship? My family court is in Brooklyn NY.


A: David's Answer: You generally would not be eligible for a decrease, as usually support is based on a percentage of your income. Nevertheless, you may be able to defeat the upward modification application by arguing that you have an "extraordinary expense." To reserve your right to proceed on a downward modification application, you'll need to file & serve your own counter-petition. -- David Bliven, Westchester Child Support lawyer. (www.blivenlaw.net)

Can I sue my ex for legal fees after this has been dismissed by another judge?

Q: I am in a custody/ visitation battle and had a court appointed lawyer. She didnt do anything, never responded to emails, called me back after multiple messages. I was forced to hire Lawyer in fear i was not receiving fair representation. My ex has dragged the case on unbelievably leaving me with thousands of dollars in legal fees. He is an alcoholic with no license and moved over two hrs away by choice and has no job. I have a respectable job and no substance abuse issues or legal matters otherwise. I am forced to drive an hr away to an exchange point. I want him to pay for the legal fees as the only thing my lawyer has accomplished is movig the exchange point a half hr closer for $9500.00

Additional information

The case was not dragged on because i am unhappy with my lawyer. My mistake for wording it incorrectly. My ex was ordered to go to alcohol evaluation in April 2012 and dis not go until november. The judge kept letting him reschedule and get away with it. ( that would be a red flag for me) so the case has gone an extra 6-7 months because of him, putting me thiusands of dollars into debt for needing to bring an attorney back to court.

A: David's Answer: Attorneys fees may be granted in a Family Court Custody case. Whether you would be entitled to it or not would depend in part on whether the case ended in a settlement or after trial, as well as the disparity of income between you & the father. Such an application must generally be made promtly after the case ends, however. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net) 

How can I drop a five year order proctetction againg the father of my kids it was a criminal case please help we wanna get marri

Q: I press charge against my boy friend we have two kids together it was a criminal case the da gave me a 5 year order proctetion I want to drop it cuz we wanna get married can u please help


A: David's Answer: First, you may contact the DA to see he s/he will consent to the change. If not, you may need to retain a criminal law attorney to make the application on your behalf. -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)

Can I change my son's last name to his stepfather's last name without going through the adoption process?

Q: My son is currently using my maiden name as his last name. His biological father was never listed in the birth certificate and was never involved in my son's life. He is in a different country and doesn't want to do anything with my son. I had recently got married and had changed my last name to my husband's last name. My husband (son's stepfather) wants my son to start using his last name as well to match our last name. How do we go about the process without undergoing the adoption process? Thank you.


A: David's Answer: Without going through the adoption process, you would need to file a change of name proceeding (http://www.nycourts.gov/forms/namechange.shtml). -- David Bliven, Westchester Adoption lawyer (www.blivenlaw.net)

12 yo boy is being abused by the CPS workers who are supposed to protect him. What can I do?

Q: My son tells CPS about excessive corporal punishment and harassment . CPS has become increasingly abusive towards my son. His father has them convinced that he is a liar. When CPS came to my home recently, they continued to abuse my son, called him a liar, told him that his brother hates him, told me that his clothes are expensive and most kids cannot afford them which is probably why he only wants to me with me. The said that his father can hit him as much as he likes as long as he doesn’t leave marks. I had an order of protection against corporal punishment which his father violated. CPS told me that their definition of corporal punishment is when a parent makes their child sit with their knees on rice for 2 hours. What can I do about CPS?


A: David's Answer: The first thing that has to be said is: unless there is a case already in court, you have no legal obligation to cooperate with their investigation. As such, if you feel they are not helping - or indeed making things worse - then politely tell them you no longer need their assistance. Then you may simply follow-up in Family Court with a visitation modification petition. The definition of "excessive" corporal punishment is certainly more broad than the definition given, but it also usually entails leaving visible marks or bruises.  -- David Bliven, Westchester Child Abuse attorney (www.blivenlaw.net)

Should my nephew agree t an uncontested divorce when there has been adultery and there is a child involved?

Q: My nephew’s wife is filing an uncontested divorce. She actually committed adultery at least 4 times. He took her back every time. They have a son and she may try to get sole custody. Is he at risk by agreeing to the uncontested divorce? Should he hold out and file a contested divorce for adultery? He needs to be in his sons life at least 50% of the time and I also think he should have custody as she is highly unstable. I am concerned that agreeing to an uncontested divorce removes his ability to use the adultery in a custody battle.


A: David's Answer: If he signs off on an uncontested divorce (or "affidavit of defendant"), he will indeed be agreeing to the wife having custody. adultery in itself will probably not win him custody, but you mentioned her "insatiability" & depending on the extent of same, he may have a good shot. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)

Might a judge agree to change in custody/visitation due to increasing physical and verbal altercations between my ex and my son?

Q: Over the years my sons relationship with his father has gotten worse. He and his wife call my son names, push him around physically, belittle him etc. And my son’s behavior towards them in turn gets worse. Ongoing physical and verbal altercations lead to calls to me to come pick him up. At home with me my son is happy, sweet, helpful etc. I have filed for modifications in the past but each time my ex has successfully painted me and my son as a liars. Now, my son has taken it upon himself to record his father’s abusive behavior. There are also recordings of his father ignoring my calls to the home to speak to the boys…He is refusing to go to his dad’s house. Does the degrading relationship that results in these constant altercations compel a judge to agree to change in c/v?


A: David's Answer: How old is your son? You should be cautious about your son "recording" his conversations with his father as the father may twist it & say you're putting him up to it. Certainly you may record phone conversations with the father that you have directly with him - and you can also keep a paper-trail on important conversations/events which often serves beter than a he-said-she-said in court.  -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)