- Frequently Asked Questions:
- What is the difference between non-contested and contested divorces?
- How can I obtain an order of protection against the abuser?
- I cannot find my spouse, can I still file for divorce?
- When am I officially divorced?
- What is custody and how is it determined?
- Will I have less visitation time with my child if the other parent has sole legal custody?
- How is child support determined?
- Who pays child support?
- Will I be able to pay less money in child support than the child support statute requires?
- What if I have the children a good deal of the time or even 50% of the time?
- Until what age must a parent support a child?
- Will a child be entitled to continued support if he/she remains in college after their 21st birthday to complete studies to obtain either a bachelor's or a graduate degree?
- If my spouse has sole legal custody, or if we share joint legal custody, or if the children just live primarily with the other parent, can the children's residence be relocated at the discretion of my spouse?
- Will my spouse have to pay me maintenance (alimony) after the divorce, and if so, for how long?
- Can my spouse remove me from our home?
- May the children and I continue to live in our home after the separation and divorce?
- Am I entitled to share in the value of the home even though title is not in my name?
- I purchased our home prior to our marriage with funds earned or received by me prior to our marriage. Will I have to share the value of the home with my spouse?
- Will the Court force me to sell the home?
- Credit cards: Should they be cancelled?
- Should I withdraw all the money from joint accounts to protect against my spouse grabbing or hiding the funds?
- If I own or have an interest in a business, will my spouse share in its value?
- Will my spouse be able to share in the value of my license or advanced educational degree?
- What courts may be involved in a matrimonial, custody or support matter?
- What is juvenile delinquency proceeding?
- What is the annulment of marriage and how is it different from the divorce?
- What is Declaration of Nullity and how is it different from the annulment?
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Family law is an area of the law that deals with family-related issues and domestic relations. Our family law practice includes representation of clients in litigated and negotiated matters involving family offenses (usually followed by an order of protection), divorce, separation, child custody and visitation, child support, spousal maintenance, equitable distribution, domestic violence, pre-nuptial and post-nuptial agreements, and juvenile delinquency proceedings. We engage in alternative dispute resolution, such as mediation, as well as conduct fact-finding and dispositional hearings, when and if necessary.
Frequently Asked Questions:
1. What is the difference between non-contested and contested divorces?
When both husband and wife agree amicably on all aspects of their separation, including division of property, child custody and visitation, child support and spousal support and do not contest the grounds for divorce, or are able to execute a separation agreement, their divorce proceedings are deemed non-contested. On the contrary, when the parties to the marriage cannot agree on the terms of their separation and require the court to decide the issues mentioned above for them, they are forced to deal with the contested divorce proceedings. As a practical point, contested divorce action requires much more work, usually continues for a longer time, and generally cost more.
2. How can I obtain an order of protection against the abuser?
If you or your children's physical or emotional safety is at risk, you should seek the advice of an attorney or the help of the Court immediately. Take immediate steps to remove yourself and your children from harm’s way. The Family Courts in each county in New York State are specially equipped to handle Order of Protection applications quickly and usually (if an immediate temporary relief is necessary) on the day that the application is received. The order of protection must be served on the Respondent. This can be arranged through a local police precinct, privately or with the professional process servers. The case will be adjourned and the Respondent will be summoned to Family court to answer the Family offense petition. Upon consent or fact-finding hearing, the Judge may issue a permanent order of protection.
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Another option for obtaining an order of protection is to report a crime to local police. After the perpetrator is arrested, a Judge at the first Court appearance (arraignment) will issue a temporary order of protection that will remain in effect pending the disposition of the case. Depending on the disposition, the Court may issue a permanent order of protection.
3. I cannot find my spouse, can I still file for divorce?
Personal service of the initial divorce papers (summons with notice or summons and complaint) is required by statute. However, in the event plaintiff (person starting the divorce) cannot locate his/her spouse, plaintiff must get permission from the court for an alternate means of service by filing a motion for such relief with the Court.
4. When am I officially divorced?
The parties in a matrimonial action are divorced once the judgment of divorce is signed by the judge. In an uncontested divorce, if a postcard is submitted with the papers, you will be notified by the court when the judgment of divorce has been signed by the court. In a contested divorce, although during the court proceeding the judge may have ordered that the parties are divorced verbally, until the attorneys have submitted the judgment to the court for signature and it has been signed, you are not yet divorced.
5. What is custody and how is it determined?
There are two types of custody: physical and legal. Legal custody essentially means decision-making ability. During marriage, both parents exercise all custodial rights. These include decision-making power over all aspects of upbringing, religion, and education, as long as the parental decisions and conduct stay clear of the neglect or abuse. Upon divorce, the person with sole legal custody then makes all of the decisions necessary in their lives. You can consult the other parent and you should try to do so, but in the event you cannot agree or in the event you choose not to consult, you are free to make the decisions. Note that the Courts, if so requested, are always available to review a decision that has been made to ensure that the decision is in the best interests of the children. Joint legal custody essentially means that each parent has an equal say in making the significant decisions affecting the lives of their children. If parents have agreed to share joint legal custody, then they have essentially agreed to set aside their personal differences to effectively co-parent their children. If parents are unable to agree on the issue of custody, then the Courts will make that decision for them.
Physical custody relates to a legal right to have your child permanently reside with you in the same household and be responsible for your child while he or she is residing with you. If one parent is awarded physical custody, than another parent most likely will be awarded visitations. If parents cannot agree on a visitation schedule, one will be provided by the Court. It is possible to have shared joint physical custody. In that case, the child will spend half the time living in the household of one parent, and another half living with another parent.
6. Will I have less visitation time with my child if the other parent has sole legal custody?
Not necessarily. Legal custody equates with decision-making, not the right to spend time with a child. The parent who has the sole legal custody has the right to make most of the decisions for a child in the event that both parents cannot agree on. When parents agree to share a joint legal custody they essentially agree to set aside their personal differences to effectively co-parent their child. Each will have an equal say in the significant decisions that need to be made for a child. Whether your spouse has sole legal custody or you share joint legal custody, you should be able to see your child as often as is possible given the child's schedule and needs. Time with a child is usually separate and distinct from the issue of legal custody.
7. How is child support determined?
New York State provides a formula for calculating the amount of child support to be paid by a parent, as set forth in Domestic Relations Law Section 240(1-b). This is a very detailed statute that must be read and interpreted carefully to calculate the precise amount of child support to be paid. Generally, after appropriate deductions are taken from gross earnings, a percentage factor is applied to the earnings to calculate a parent's basic child support obligation. The percentages vary depending upon the number of dependent (unemancipated) children under the age of 21:
17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children;
The statute must be followed carefully to determine the precise amount of child support since there are many factors and conditions set forth in the statute that will affect the calculation.
8. Who pays child support?
Generally, the parent who does not have the physical custody of a child for the majority of the time will be the parent obliged to pay child support.
9. Will I be able to pay less money in child support than the child support statute requires?
Your best hope for accomplishing this goal is to negotiate a reduction with the other parent as part of an overall settlement. However, you should note that the other parent is under no obligation to do so. The Court rarely finds that sufficient facts exist to not have the formula amount apply.
10. What if I have the children a good deal of the time or even 50% of the time?
Again, if you are not able to negotiate a reduction from the statutory formula amount with the other parent, you will have a very difficult time convincing a Court not to apply the formula. To demonstrate this point, even if the parents share time with the children equally but cannot agree on the issue of child support, there is case law holding that the parent with the greater income will be deemed the "non-custodial" parent for purposes of child support and that parent will be required to pay child support consistent with the statutory formula!! This illustrates the reason why it is always encouraged for clients to seriously consider good faith negotiation as the preferable route in resolving your dispute.
11. Until what age must a parent support a child?
In New York State, a child has the right to support until he/she reaches age 21 or is emancipated earlier. If a child opts not to attend college, but rather joins the military or enters the work force full time, then child support will cease when that event occurs after their 18th birth date.
12. Will a child be entitled to continued support if he/she remains in college after their 21st birthday to complete studies to obtain either a bachelor's or a graduate degree?
No. If support is to be paid after a child's 21st birthday, it will only be as a result of an agreement between parents. The law does not require continued support after age 21, regardless of whether the child's college education has been completed.
13. If my spouse has sole legal custody, or if we share joint legal custody, or if the children just live primarily with the other parent, can the children's residence be relocated at the discretion of my spouse?
The Court takes the issue of relocation of the children very seriously. The primary concern of the Court is to determine, "what is in the best interests of the children". In making this determination the Court will ask, "If relocation is allowed, will it significantly impact the relationship between the children and the parent left behind?” The Court will want to know everything about the existing relationship. (e.g., How often do you visit with the children? Do you attend their school activities? Do you have visitation during the week? Do you exercise all of the visitation rights you have obtained? What is the quality of your visitation?) The Court will also evaluate the reasons behind the anticipated move to determine if the custodial parent has explored all options in an effort to avoid moving the children. The distance of the proposed move is also an important factor. Is it of such a distance that it will prevent you from exercising your regular visitation with the children? There has been a tendency by the Court to generally allow moves that are less than a two (2) hour drive from the children's current residence (this assumes that the custodial parent has a valid reason for the move). These determinations are driven by the specific facts of each case, so be careful not to place too much hope in what the Court may have done in other cases.
14. Will my spouse have to pay me maintenance (alimony) after the divorce, and if so, for how long?
Under the recently enacted legislation that went into effect in 2016, there is a formula on how to calculate the temporary spousal maintenance, as well as an advisory schedule for the post-divorce maintenance amount and duration. There are also additional factors that the Court shall consider in determining the amount and duration of maintenance award. Here are several factors considered to be the more significant:
- the duration of the marriage and the age and health of each spouse;
- the present and future earning capacity of each spouse;
- your ability to become self-supporting;
- reduced or lost lifetime earning capacity as a result of your having foregone or delayed education, training, employment, or career opportunities during the marriage;
- the presence of children of the marriage in your home;
This is a complex determination and one that will be affected by a host of considerations.
15. Can my spouse remove me from our home?
Unless you have physically, verbally, or severely emotionally abused your spouse or have already established alternative housing, your spouse may have great difficulty removing you from your home. Unless you consent to the removal, your spouse must make a Court application to have you removed and the Court will allow you the opportunity to be heard on that issue.
16. May the children and I continue to live in our home after the separation and divorce?
Assuming you are or anticipate being the custodial parent and if you have a child under the age of 18, the Court will usually strive to keep the child in the home, neighborhood, and/or school district in which they are familiar, assuming the child is thriving in the current environment and further assuming that financial circumstances do not dictate otherwise.
17. Am I entitled to share in the value of the home even though title is not in my name?
If the house was purchased during the marriage with funds earned during the marriage (regardless of which spouse earned the money), then it is likely that you will have an equitable interest in the value of the home even though your name does not appear in the title. There are many factors considered in calculating the amount, value and percentage of that equitable interest.
18. I purchased our home prior to our marriage with funds earned or received by me prior to our marriage. Will I have to share the value of the home with my spouse?
Usually not. However, if the house has appreciated in value during the marriage as the result of efforts of your spouse or marital monies invested in the property, then your spouse may have an interest in the amount of appreciated value that has accumulated since the date of the marriage. Take notice that if you place your spouse's name on the deed title during the marriage, this may give rise to a legal and equitable interest in the full value of the property on the part of your spouse.
19. Will the Court force me to sell the home?
If there are no children and assuming the home is marital property, the Court will afford each spouse the opportunity to buy out the other. If neither spouse has the means or interest in buying out the other, then the Court could order it to be sold and the proceeds shared in some equitable fashion.
20. Credit cards: Should they be cancelled?
If you believe that your spouse will utilize the cards for purchases other than legitimate living expenses, then consider closing the account. Most accounts can be closed by either paying off the outstanding balance or transferring the balance to another card. If you are the primary name on the account, you may be able to accomplish the same goal by merely having your spouse removed as an authorized user. Ultimate responsibility for the debt will be decided by the Court or settled through negotiation. In most circumstances, it is recommended that you advise your spouse of your actions (after the accounts have been changed) so that he/she is not surprised or embarrassed when a charge is unexpectedly denied.
21. Should I withdraw all the money from joint accounts to protect against my spouse grabbing or hiding the funds?
Courts do not look favorably on any spouse "raiding" a joint account or removing funds for no legitimate reason. A spouse must think carefully before withdrawing funds. Remember, the power of the Court may be invoked fairly quickly and a spouse will be held accountable by the Court if they are found to have wasted or hidden marital assets.
22. If I own or have an interest in a business, will my spouse share in its value?
If the business was started or an interest in the business was acquired during the marriage, then your spouse will likely have an equitable interest in the value of the business or business interest. If ownership of the business predated the marriage or if you acquired your interest in the business through inheritance or gift, then your spouse may have an interest in the appreciated value (if any) of the business that accrued during the marriage if the appreciation was due to the active efforts of yourself or your spouse. An accountant will usually be retained to prepare that evaluation and there are many factors considered by the evaluator in making that determination. Once the value is determined, the next step is to determine what percentage of the value of the business should be used to calculate your spouse's interest. There are many factors that a Court will take into account in arriving at that percentage, including but not limited to, the length of the marriage, your spouse's contributions to the business, marital earnings or assets invested into the business, etc.
23. Will my spouse be able to share in the value of my license or advanced educational degree?
For divorces commenced prior to 2016, it was a law that if all or a part of the education and training necessary to acquire the license or advanced educational degree was completed during the marriage and if all or a part of the cost for the education and training were paid from marital assets, then it is likely that your spouse will have an interest in its value. After the recent changes in New York Domestic Relations Law that went into effect in 2016, the court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, the court, in arriving at an equitable division of marital property, shall consider the direct or indirect contributions, to the development during the marriage of the enhanced earning capacity of the other spouse. NY Dom. Rel. L. § 236B(5)(d)(7).
24. What courts may be involved in a matrimonial, custody or support matter?
Supreme Court has exclusive jurisdiction over divorce; however, Family Court has concurrent jurisdiction over custody, visitations and support matters. If the person is seeking a divorce, he or she must file summons and complaint in the Supreme Court. If the parents of the child are not seeking the divorce or are not married and want to adjudicate family offense, custody, visitations or support matter, they should file the petition in the Family Court.
25. What is juvenile delinquency proceeding?
It is the proceeding in New York Family Court that adjudicates the alleged commission of an offense by a minor child at least 7 years old and less than 16 years old. When such juvenile child is arrested in the State of New York, he or she may be issued a Desk Appearance Ticket (“DAT”) by police to appear in Family Court in the county where the alleged offense has been committed. Alternatively, when the offense is serious and/or the child has a prior history of contacts with the Criminal Justice system, the child may be held overnight in the secure detention facility and brought to Family court the next day the Court is in session.
Once the child appears in Court with the parent or legal guardian, he/she and the parent will be interviewed by the Probation Department and, based on the allegations of the complaint, prior history of the child and the wishes of the alleged victim and/or victim’s parent, if the victim is himself a minor, the case may be processed through adjustment by probation. Under this scenario, the juvenile delinquency petition is not filed, and the child agrees to abide by probation rules for an initial period of up to 60 days. The child must maintain good school attendance, report to probation when directed, complete written essay and/or community service as directed by assigned probation officer, and do not get rearrested. If the child complies, the case will be dismissed.
In case of the allegation that a minor committed serious offenses called designated felonies, or if the victim wants to go forward with the case, New York City Law Department, that acts as a prosecutor in juvenile delinquency proceeding, will file a juvenile delinquency petition and the child will be ordered to see the Judge. Juvenile Delinquency proceeding is similar to the proceeding in adult criminal court, however, there are significant differences: there is no bail option for a juvenile – it is either remand pending the disposition of the case or release to the custody of parent/guardian; there is no right to jury trial – fact-finding hearing by the Judge instead; there is no criminal conviction – juvenile delinquency adjudication instead; disposition options are somewhat different, including dismissal, conditional discharge, probation of up to 2 years or placement in secure or non-secure detention facility for an initial period of up to 18 months. For the most serious crimes allegedly committed by juveniles at least 13 years of age, prosecutor has an option to remove the case to an adult criminal court.
26. What is the annulment of marriage and how is it different from the divorce?
A man and woman must be legally capable of entering into a valid marriage. If the parties are under a disability the marriage can be annulled, that is, it can be voided. Among the grounds for annulment of marriage are incurable physical incapacity, incapacity to enter into marriage due to infancy, lack of consent or consent procured by fraud or duress, and five years of incurable mental decease.
- If either spouse is incurably incapable of having sexual intercourse, the marriage may be annulled.
- Both parties must be over the age of 18 years to marry without parental consent. A marriage between persons under the age of 18 years may be annulled, at the discretion of the Court, if the spouse under 18 wants an annulment.
- If, after marriage, either partner becomes incurably insane for five years or more, the marriage can be annulled. However, the sane spouse may be required to support the insane spouse for life.
- The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse; or either spouse cannot understand the nature, effect and consequences of marriage.
- The marriage may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse can obtain the annulment on lack of consent.
27. What is Declaration of Nullity and how is it different from the annulment?
Unlike the annulment, where the marriage is voidable, certain marriages are void at the inception. Such marriages include incest and bigamy. In case of incest, the marriage is between ancestors and descendants, sisters and brothers (of the whole or half blood). In case of bigamy, one of the parties to the marriage is already married to another person.
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