Dallas, TX asked in Family Law for New York

Q: NY Family Law Magistrate Facts and Finding acerted Powers v Powers 86 NY2d 63, 68-69 [1995] case wrongly?

NY Magistrate used the above case to assert that respondent had income and willfully did not pay plaintiff. However, Respondent showed through tax returns and financial affidavits that he did not have the means to pay. As well, plaintiff and Respondent signed a contractual modification agreement with the understanding that respondent could not and may not be able to pay in the future. Also, Plaintiff could not take Respondent to court unless a prima Facie evidence can be found.

Magistrate ruled willfulness of non payment of child support.

Q: Are there case that support adherence to contractual law supersedes and by Plaintiff filing and bring as case against respondent, she is the one in default?

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1 Lawyer Answer

Lawrence Allen Weinreich

Answered
  • Garden City, NY
  • Licensed in New York

A: Your question does not have enough information to give a full and considered answer. In general, the burden is on the payor to prove that he does not have the ability to earn enough to make the required payments and the money that he does have is spent only on necessities. In other words, as an example, if you spend money on cablevision instead of paying support you are in contempt [cablevision is not a necessity].

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