Q: Does my spouse have to move out of the house as soon as I serve them with papers?

A: No. The mere fact of initiating a matrimonial action by service of a Summons upon your spouse does not require your spouse to vacate the home. If that were the case, all divorces would involve a race to the courthouse steps to see who could file first. The law in New York is that your spouse can only be excluded from the marital home where it can be demonstrated to the Court that there has been extreme physical violence, in which case for the safety of the victim spouse, the Court will exclude the aggressor spouse from the home. (Back to Top)

Q: Do you first have to be separated for a year before you can become divorced?

A: No. This is a common misconception. What leads to this confusion is that parties can be separated by either a Judgment of Legal Separation or a written Separation Agreement. In either instance, after one year of being separated, either party can commence an action for divorce against the other party with your grounds for divorce being the fact that you have been separated for one year. In most cases, clients get divorced immediately and there is no requirement that you must first be separated for one year. (Back to Top)

Q: Does it matter whose fault it is that you are getting divorced?

A: No. In New York, we have what is called the Equitable Distribution Law. Under our divorce laws, marital assets are divided on an equitable basis, without regard to which party's conduct caused the divorce. This often times causes the innocent spouse to feel cheated and upset but this is the state of the law in New York. (Back to Top)

Q: How is child support determined?

A: In 1990, New York enacted the Child Support Standards Act. In order to have consistency with respect to the amounts of child support awarded in each case, the courts how follow these guidelines wherein child support consists of a percentage of the non custodial parent's gross income minus the deduction for FICA only.

The percentage differs, depending upon the number of children, namely:

17% for one child, 25%1 for two children, 29% for three children, 31% for four children and a minimum of 35% for five or more children. (Back to Top)

Q: Can child support ever be modified?

A: Yes. Child support is always subject to modification, either upwardly or downwardly, based upon an appropriate change in circumstances following the granting of a child support order. Often times increases are granted when the payor spouse has enjoyed a substantial increase in income and the current amount of child support being paid is now insufficient to meet the reasonable needs of the children. Conversely, if the payor spouse is laid off or loses his or her employment, through no fault of their own, they will be entitled to a reduction in child support based upon their earnings at that time, which often times consists of unemployment insurance benefits. In all cases, the non custodial parent must at least pay the minimum amount of support which is $25.00 per month.

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Q: How is property divided?

A: Under New York State's Equitable Distribution Law, the court is required to review the various statutory factors listed in Section 236 B(5) of the Equitable Distribution Law. While the law does not mandate an equal distribution of the assets, practically speaking, that is often times the result, unless there are exceptional circumstances which would justify the court in deviating and awarding more than half of the assets to one of the spouses. This normally only occurs in short term, childless marriages. (Back to Top)

Q: If my parents gave us $25,000 for a downpayment on our house, does my spouse get half of that money at the time of a divorce?

A: Probably not. While the court is empowered to distribute the marital assets, there are certain assets that are precluded from the marital estate which are referred to as "separate property". These assets typically include a gift or inheritance directly to one spouse from their family, a personal injury settlement or assets that a party owned prior to the marriage. In this case, as long as the funds were given to one spouse only and as long as that spouse can trace that the gifted funds went towards the downpayment on the home, then the spouse who received the gift should be awarded those funds as part of the settlement or as extra proceeds from the sale of the home. (Back to Top)

Q: Can I empty out our savings account and blow all the money in Las Vegas in order to prevent my spouse from getting anything?

A: No. In such a case, the courts would distribute the remaining assets as if the liquidated bank account was still in effect and was awarded to the party who blew the funds in Las Vegas. If there are not sufficient other assets to offset the wastefully dissipated funds, then the court will make a distributive award to the injured spouse in an amount equal to one half of the dissipated funds so that they will be compensated and made whole. (Back to Top)

Q: What is the difference between sole custody and joint custody?

A: While ten people will probably give you ten different answers, my feeling is that it does not really matter what terminology is used. What is important to me is how much time do you get to spend with your children. Many people operate under the misconception that joint custody means that you have the children 50% of the time. It does not. What joint custody is, in my opinion, is a tool which allows attorneys to settle custody disputes with a term that both parties can walk away happy with and feeling that they did not abandon custody of their children.

Conversely, there are cases where once a spouse is given sole custody of the children but the other spouse, in addition to his or her visitation rights, has other rights such as equal access to school, medical and other records of the children, the right to be in attendance at all the children's extracurricular activities, school functions, parent/teacher conferences and the like, which in effect give that parent the same rights as they would have as a joint custodian.

Finally, it is important to note that in New York, courts cannot award joint custody. It can only be done by agreement between the parties. (Back to Top)

Q: At what age can children decide which parent they wish to live with?

A: There is no set age at which children can decide. The wishes of the children are but one factor for the court to consider in making a custody award. However, from a practical matter, once children reach the age of approximately 14 years, most courts consider the children old enough, mature enough and intelligent enough to decide where they wish to reside.

Moreover, in litigated custody cases, the children will be represented by a court appointed law guardian, who is an attorney appointed to represent the child and to advocate the wishes of the child. In situations where the child expresses a desire to reside with one parent, the child's law guardian is often times very instrumental in making the child's wishes known to the court, as well as to the litigants, which often times accelerated a settlement of the case. (Back to Top)

Q: Who pays for my attorney?

A: Each spouse retains their own attorney under terms agreed upon between the attorney and the client. However, in situations where there is a gross disparity in the income of the parties, then the non monied spouse has the right to submit an application to the court requesting an award of counsel fees from the monied spouse.

However, in situations where the parties, incomes are relatively even, or in situations where both parties are receiving a significant amount of liquid funds as part of the divorce settlement, then in those cases, each party will normally pay their own counsel fees. (Back to Top)

Q: When do I stop paying child support?

A: You are required to pay child support until your child reaches the age of 21. However, support may terminate sooner if your child becomes emancipated by any of the following events:

1. death of the child;
2. marriage of the child;
3. the child obtains employment and is capable of being self sufficient;
4. the child joins the military service;
5. the child leaves the home of the custodial parent.

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Q: What is the New York State Income Shares Model?

A: IT PERTAINS TO CHILD SUPPORT:
New York uses the Income Shares Model for the determination of child support. Child support may be ordered for the care, maintenance and education of any unemancipated child under the age of twenty-one years. "Child support percentage" shall mean:

  • Seventeen percent of the combined parental income for one child.
  • Twenty-five percent of the combined parental income for two children.
  • Twenty-nine percent of the combined parental income for three children.
  • Thirty-one percent of the combined parental income for four children.
  • No less than thirty-five percent of the combined parental income for five or more children.

The court shall calculate the basic child support obligation based upon consideration of the following factors:

  • The financial resources of the custodial and non-custodial parent, and those of the child.
  • The physical and emotional health of the child and his/her special needs and aptitudes.
  • The standard of living the child would have enjoyed had the marriage or household not been dissolved.
  • The tax consequences to the parties.
  • The non-monetary contributions that the parents will make toward the care and well-being of the child.
  • The educational needs of either parent.
  • A determination that the gross income of one parent is substantially less than the other parent's gross income.
  • The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income.
  • Any other factors the court determines are relevant in each case.

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Q: Is a premarital agreement enforceable?

A: An agreement made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include:

  • A contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will.
  • Provision for the ownership, division or distribution of separate and marital property.
  • Provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, (subject to the provisions general obligations law), and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.
  • Provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

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Q: Is there such a thing a “no-fault” divorce in New York State?

A: New York does not have no-fault divorce as such. Instead, New York's version of a no-fault divorce requires that the spouses live apart from one another for at least a year before a divorce can be filed. The parties must execute a Separation Agreement, which must be filed with the local County Clerk before the one-year period begins to run. The spouse suing for divorce must prove that he or she has substantially performed the terms of the Separation Agreement to obtain a divorce. If you obtain a divorce based on a written Separation Agreement, you don't have to sign any papers or give any testimony about reasons for the divorce. In other words, no personal allegations against either spouse are necessary. There are other grounds for divorce in New York which are explained below. (Back to Top)

Q: What are the residency requirements to file for divorce in New York State?

A: To file for a divorce in New York you must satisfy one of the following residency requirements:

  1. The marriage ceremony was performed in New York State and either spouse was a resident of the state at the time of the commencement of the action and resided continuously in this state for one year immediately before the action began;
    OR
  2. The couple lived as husband and wife in this state and either one is a resident thereof and resided in this state for a continuous period of one year immediately prior to the commencement of the action;
    OR
  3. The grounds for divorce occurred in this state and either party is a resident thereof and lived in this state for a continuous period of one year prior to commencement of the action;
    OR
  4. The grounds for divorce occurred in this state and both parties are New York residents at the time the action is commenced;
    OR
  5. If you and your spouse were married outside of New York and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state -- either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing this case. (Back to Top)

Q: Will anybody have access to the papers filed in court?

A: No. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. The law prohibits the clerk of the court and the court reporter from allowing anyone, other than a party, or the attorney or counsel of a party, except by order of the court, to examine or copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum, or testimony. (Back to Top)

Q: What are some legal terms that I may need to know when filing for divorce?

A:
Filing Party Title: Plaintiff
The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title: Defendant
The spouse who does not initiate the Divorce with the court.

Court Name: Supreme Court of the State of New York, _____________ County
The proper name of the court in which a Divorce is filed in the state of New York. Each jurisdictional court typically has a domestic relations or a family law department or division.

Child Support Enforcement Website: http://newyorkchildsupport.com/

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction: In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document: Verified Complaint for Divorce
The title and name of the legal document that will initiate the New York Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document: Judgment of Divorce
The title and name of the legal document that will finalize the New York Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name: Office of the Clerk of the County Court
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation (separation from bed and board) in New York are: (1) adultery; (2) abandonment; (3) imprisonment for 3 or more consecutive years; (4) neglect of and failure to provide support for a wife; and (5) cruel and inhuman treatment. If only 1 spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to 1 year if: (1) the spouses were married in New York and either spouse is still a resident; (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for legal separation arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231].

Property Distribution: Equitable Distribution

The applicable New York law that will dictate how property and debt is to be divided upon Divorce.

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Q: What is spousal support?

A: Spousal support is the term used for payments or transfers of money or assets from one spouse to another after a divorce. You may be more familiar with the word "alimony," or the term "maintenance", which are the same as "spousal support".

Throughout these questions and answers the words "spousal support," "alimony," and "maintenance" are used interchangeably. (Back to Top)

Q: Why is there spousal support?

A: Spousal support laws throughout the United States seek to prevent a divorced spouse from suffering from a decrease in his or her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult, if not impossible, for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married. (Back to Top)

Q: What is temporary alimony or "alimony pendente lite"?

A: The judge can award temporary alimony when a couple has separated, but has not yet divorced, or if the divorce is not yet finalized through the court system. Temporary alimony allows the receiving spouse to maintain a certain standard of living while adjusting to the reality of a marital breakdown. For example: the husband decides that he is going to move out of the marital home, therefore taking the initial step to dissolve the marriage. At this point, the wife will need funds available to pay the mortgage, utilities, etc. "Temporary Alimony" would allow her carry on in lieu of the immediate situation. (Back to Top)

Q: What is "rehabilitative alimony"?

A: Rehabilitative alimony is financial support that is provided for a short period of time; to allow the receiving spouse time to get adjusted, establish him or herself, financially. This type of alimony will allow the divorced spouse time to "rehabilitate" him or herself and become completely self-supporting. For example: once the divorce is finalized, the decree or judgment will order "rehabilitative alimony" based upon certain termination criteria, like but not limited to, remarriage and/or gaining employment. The wife may need a certain amount of time to gain employment in a career-oriented position. This may be possible, but only if she first goes to school, this may take two years. Some reform activists have objected to the use of the word "rehabilitative," believing that it has a pejorative context. These people believe that the use of "rehabilitative" implies that the recipient was incapable of making a living, or that some type of personal fault must be "corrected." On the other hand, no other term has replaced it, so we will continue to use this common term. (Back to Top)

Q: Does "Permanent Alimony" still exist?

A: Yes, permanent alimony can still be awarded. There is nothing stopping a couple from negotiating and agreeing to an award of permanent alimony. Outside of this situation, permanent alimony is rarely awarded. The same factors controlling an award of long-term, rehabilitative maintenance applies to permanent alimony: the recipient ex-spouse must have no realistic chance of employment, and the marriage must have been over a long period of time. (Back to Top)

Q: What is reimbursement alimony?

A: As the name implies, "reimbursement alimony" is alimony that reimburses an ex-spouse for some expense or expenses that he or she may have paid out on behalf of the ex-spouse.

Reimbursement alimony often arises in the situation where the wife supports the husband during school while he receives a degree. Should they divorce soon after he receives that degree, a court may award reimbursement alimony to her. The likelihood of reimbursement alimony lessens the greater the time between the receiving of the degree and the divorce. Should the divorce occur several years later, it is unlikely that the wife would receive reimbursement alimony. On the other hand, she may be able to receive part of the value of the degree in the equitable distribution of the marital assets. Professional practices, like but not limited to, lawyers and doctors are often subject to this type of distribution.

Reimbursement alimony can be a lump sum, but it is more likely to be paid out over a period of time.

For example: the wife supports the husband through medical school for four years and approximately one year after he graduates they divorce. The wife would most likely be entitled to reimbursement alimony, but the husband would only be able to pay her as he begins to get paid for his medical practice. A lump sum settlement would not be an appropriate solution in this situation. (Back to Top)

Q: What is a "lump sum" settlement?

A: A lump sum is a large, fixed payment comprising of all of the alimony. Lump sum alimony is often provided instead of a property settlement when there is little or no property to divide.

Lump sum alimony is unusual in that it is payable even if certain events occur that would normally cause the cessation of alimony, such as remarriage. Since lump sum alimony is in lieu of a property settlement or reimbursement alimony, the present or future status of the recipient does not affect the alimony. Lump sum can even be made payable to the estate of the recipient, should he or she die, if the alimony agreement so states.

A lumps sum settlement on alimony is often less than what the receiving spouse would be paid over a longer period of time. The lump sum settlement is more enticing to the receiving spouse and in negotiation that carries a price along with it. This type of alimony agreement also provides stability for the receiving spouse. Financially it may not be the best choice, but emotionally it will allow the receiving spouse to live in a way that he or she does not have to rely on an ex-spouse in the future. (Back to Top)

Q: What Are the New York Divorce Laws different for those in the military?

A: A New York military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From New York Divorce Proceedings

There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local New York court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a New York court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:
- You or your spouse must reside in New York
- You or your spouse must be stationed in New York

Grounds for New York Military Divorce

The grounds for a military divorce in New York are the same as a civilian divorce.

Dividing the Property

Along with the normal New York property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In New York, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal New York child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid. (Back to Top)

 

 


Find the answers to frequently asked questions:

Robert

Robert Vario

Phone: (716) 824-7200
Fax: (716) 824-8728
Email: rvario@lorigo.com

Specialty:

  • Marital & Family Law
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