new-york-state marriage child-support custody
Infidelity and child support
<p>Lets say hypothetically I got married and had a child. Five years later my wife sleeps with  several other men but I don't have proof of this. I wish to attempt to gain full custody of the child, avoid paying child support payments, and avoid paying alimony.</p>
<p>So, I have all my assets signed over my brother and all my income goes to my brother. Then, when I need money I request money from time to time from my brother.</p>
<p>Is this legal in the United States, in New York State for example? How then would child support, if any, be distributed?</p>
<p>This hypothetical case is inspired by and similar to the one mentioned in <a href="https://hudsonreporter.com/2023/04/19/achraf-hakimis-ex-wife-denied-share-of-fortune-as-football-stars-assets-found-in-mothers-name/#:%7E:text=Hakimi%27s%20decision%20to%20register%20all,in%20Madrid%20to%20Tunisian%20immigrants" rel="nofollow noreferrer">an article</a> in the <em>Hudson Reporter</em> discussing a divorce of a sports star in Spain who diverted 80% of his income to his mother.</p>

<p>For clarity, in a divorce case in New York State involving children, the judge typically decides: (1) child custody, (2) child support, (3) alimony, (4) division of the couple's property, and (5) allocation of attorney's fees and costs associated with the case. The judge also terminates the marriage if the jurisdictional requirements for doing so are met. In New York State, there is both no fault divorce and fault based divorce, and in a fault based divorce, the judge decides if fault was present. Divorces are handled by the New York State Supreme Court (not, as one might suspect, by the New York State Family Court), which is a trial court of general jurisdiction in New York State.</p>
<p>In a fault based divorce, marital fault is considered with regard to issues of property division and alimony, but not with regard to child custody or child support.</p>
<p>If you are married and your wife has a child during the marriage, in New York State, you are presumed to be the father of the child. You can bring a lawsuit to prove that you are not the father of the child, but the deadline for doing so is fairly short after the child is born. After five years this statute of limitations would probably have run. But, it sounds like the infidelity is not alleged to have caused the wife to become pregnant, so that isn't really an issue.</p>
<p>The extreme levels you would have gone to in order to spite your spouse  and your hostility towards her, make it unlikely that the court would award you full custody or joint custody, although it would be required to award you some parenting time so long as you were legally presumed to be the father.</p>
<p>If you are legally considered to be a parent of the child, custody will be allocated in the best interests of the child, and child support will be awarded based primarily on your income, your ex-wife's income, and the number of nights that the child spends with each parent.  In all likelihood, you would be awarded little parenting time given your conduct and statements, and full custody would be awarded to the wife who would get child support from you based upon your income. (Assets are rarely considered in child support awards.)</p>
<p>If you sign assets over to your brother, the court will probably treat you as if you still owned those assets for purposes of property division upon the divorce. If your assets exceed those of your spouse, the court will probably award all remaining assets to your spouse and require you to pay a property equalization payment to your spouse to make up for your inability to pay a full amount to your pre-transfer share of assets to your spouse. If the transfer to your brother took place after the divorce was commenced, the court would probably also hold you in contempt of court and put you in jail.</p>
<p>Your transparent efforts to divest yourself of assets, and your unsubstantiated claim of infidelity would not in any way reduce you alimony obligation to your spouse, if under the facts and circumstances, such as the length of the marriage and the relative economic means of the parties, the court finds that an alimony award is appropriate.</p>
<p>Unsubstantiated claims of infidelity will only make the court treat you more harshly. Most New York State divorces are no fault divorces in which infidelity is irrelevant, but New York State does have residual fault based divorces which could count against your ex-wife in a variety of ways (although not with respect to child custody or child support). But this is only if you can prove the infidelity in court.</p>
<p>In reference to the linked case in Spain, it is worth noting that a New York State divorce judge has much more power and discretion than a Spanish divorce judge. The New York State divorce judge is allowed to equitably divide the couple's property rather than merely adhering to formulaic community property rules, and the New York State divorce judge has contempt of court power which the Spanish divorce judge lacks.</p>

<p>Divesting assets to avoid debts in the US is fraud.  Engaging in fraud would be a very poor way to gain custody of a child.</p>
<p>Assets gained during marriage would not be transferrable to a third party and the transfer would likely not be allowed by the courts.</p>
<p>So now you've lost the money <em>and</em> the child.</p>
<p>Best is to hypothetically get married and understand that half of the assets you gain are no longer yours no matter why.  Create a child and pay for its upbringing.</p>

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<p>Parenting time and parenting responsibilities (colloquially, &quot;custody&quot;) will be determined in accordance with the best interests of the child (see <em>Family Law Act</em>, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04#section37" rel="nofollow noreferrer">s. 37</a>). Evidence regarding extra-marital affairs is irrelevant to a determination of the best interests of the child unless it bears upon a factor listed at s. 37(2)(a).</p>
<p>Child support will be distributed according to the <a href="https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/FullText.html" rel="nofollow noreferrer"><em>Child Support Guidelines</em></a> (<a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_11025_00_multi#section150" rel="nofollow noreferrer">s. 150</a>). The amount of support is dictated by the division of parenting time and the income of the paying parent.</p>
<p>Where it appears that a spouse has diverted income, the court can impute the income (<em>Child Support Guidelines</em>, s. 19(1)(d)). A spouse has an obligation to disclose their true income and provide relevant documentation (<em>Child Support Guidelines</em>, s. 21). Failure to do so can result in an adverse inference, imputation of income, and/or contempt orders against the spouse (<em>Child Support Guidelines</em>, ss. 21-23; <em>Family Law Act</em>, ss. 212-213)</p>
