Divorce / Family Law
If you have made the difficult decision to end your marriage, you’ll need a trusted and experienced divorce attorney to help you close this chapter in your life.
The legal process of divorce will require you to confront personal matters that will greatly impact your future. Some of these matters include determining the division of property, paying or receiving spousal and child support, and establishing child custody and visitation. Having a knowledgeable divorce attorney who understands the nuances of pensions, business valuations, separate property, prenuptial agreements, and disposition of the marital residence will guarantee that your rights are protected.
Divorce cases are handled by the Supreme Court in New York, not Family Court. A proper divorce action must be filed in the county where you or your spouse currently reside. Although Family Court does not handle divorce cases, cases for child support, child custody and visitation, spousal support/maintenance and paternity all can be filed in Family Court.
The state of New York has adopted no-fault divorce, which means that it is no longer necessary to prove adultery, abandonment, cruelty or other grounds. However, it is still necessary to show an irretrievable breakdown of the marriage for six months or more.
Whether it takes a month or years, most divorce cases eventually settle out of court. Accountants, custody evaluators and other experts are expensive, and having a judge make the final decisions about your future is always a substantial risk.
Uncontested vs. Contested Divorce in New York
Uncontested Divorce: If you and your spouse mutually agree on all the key issues in your divorce, an uncontested divorce is possible. An uncontested divorce can save time, stress, and spares the expense of litigating in court. The primary divorce paperwork will be agreed upon and finalized between you and your spouse in private, rather than involving a judge and the court. Even if you anticipate an amicable divorce, it’s important to hire a qualified divorce attorney to represent your interests.
Contested Divorce: If you and your spouse disagree about the terms of the divorce, you will most likely need to resolve your conflicts in court with the assistance of a judge. In a contested divorce, there are a number of procedural steps that need to be followed including:
- Preparing, filing, and serving divorce summons/complaint
- Non-filing spouse must respond to summons/complaint
- Both spouses must engage in discovery or information gathering process to disclose financial assets and debts
- Pre-trial motions and hearings
- Settlement proposals and negotiations between spouses’ attorneys
- Completion of discovery and trial preparation
Dividing Marital Property in New York/Equitable Distribution
The assets and debts you and your spouse have accrued during your marriage will be divided in accordance with New York’s equitable distribution laws. Some of this marital property includes: bank accounts, IRAs, pensions, stocks and bonds, home, vehicles, furniture, jewelry, etc.
Although a 50/50 split is not guaranteed, a judge will take into consideration several factors to determine what is equitable and fair for both sides. Factors taken into account may involve length of marriage, each spouse’s financial contribution to marriage, age and health of each spouse, need of the custodial parent to occupy marital residence, any award of spousal maintenance, etc.
Property valuation and division can be extremely complicated, often times requiring the assistance of appraisal companies and financial accounting experts.
Spousal support or maintenance in New York
A judge will consider many factors when addressing a request for spousal support/maintenance including: income of each spouse, how marital property was divided, length of marriage, age/health of spouses, educational needs of spouse with less income, standard of living both spouses had during marriage, conduct during the marriage, and more.
Spousal maintenance can be granted in two ways: (1) on a temporary basis during the pendency of the divorce case and (2) on a post-divorce basis.
- Contested or uncontested divorce
- Equitable distribution of marital assets and debts
- Child custody and visitation
- Child support and (if applicable) alimony
- Unique issues in divorces involving same-sex couples
Child Custody and Visitation in New York
The stakes are always higher in a divorce case when there are children involved. Often times, children are forced to quickly adjust to a new reality where their parents no longer live under the same roof and families become divided. The attendant emotions of anger, confusion, and resentment are unavoidable and add another layer of complication to an already difficult situation.
At the outset of each case, our firm prioritizes negotiating a quick and custody arrangement that is in the best interests of a child. It is vital to have an attorney who is a skilled negotiator that aims to achieve mutually beneficial compromises between both parents. If an amicable resolution is not possible, a seasoned litigator is vital.
Custody in New York is divided into two parts: Residential/Physical Custody and Legal Custody.
Physical custody refers to where the children live. Legal custody indicates which parent has the authority to make major decisions related to the children’s upbringing as it relates to education, medical care, religious affiliation, and extracurricular activities, etc. Whoever has physical custody is considered the custodial parent. The non-custodial parent can be granted visitation. While the divorce is pending, a temporary child custody order can be put in place until a judgment of divorce is granted.
When determining custody and visitation, a judge will base any decisions on what is in the best interests of the children. Some factors the court will consider include: who has been the children’s primary caretaker; physical/mental health of both parents; each parent’s relationship to the children; the children’s preference if old enough to decide; history of alcohol/drug abuse/child abuse/neglect; etc.
Child Support in New York
The custodial parent is entitled to receive child support from the non-custodial parent. In New York, child support is calculated by combining the income of both parents and then applying a formula that calculates gross yearly salary minus yearly social security paid and yearly Medicare tax paid. This number is then multiplied by certain percentages per the number of children involved.
For one child: multiply by 17%
For two children: multiply by 25%
For three children: multiply by 29%
For four children: multiply by 31%
For five or more children: multiply by no less than 35%
Modifications to child custody and child support can be made if/when there has been a change in circumstance.
Order of Protection
Orders of Protection are designed to protect individuals who have allegedly been the victim of a crime or family offense. They can be issued in two ways; Criminal Court or Family Court. Criminal Court will issue a warrant after an arrest as a condition of release and arraignment for assault, domestic violence or other types of crimes against a person. Family Court will issue one when someone alleges that a family offense has been committed against him or her by a spouse, partner or another family member. In the second instance, an Order of Protection can be granted even if no criminal charges have filed.
In both Criminal and Family Court there are two types of Orders of Protections that can be issued. The first type of Order of Protection is a Full Stay-Away Order. This type prohibits any contact with the alleged victim. If a Full Stay-Away Order of Protection has been issued against you, you may be forced to move out of your home and are prohibited from contacting the alleged victim by email, phone, texting or through a third party. Depending on your specific circumstances, you may also be prohibited from seeing or even contacting your children. Your only option to see your children would be to file a visitation petition in Family Court.
The second type of Order of Protection is a Limited Order of Protection. This is a less restrictive court order and may allow a person to communicate with the alleged victim with the understanding that he/she will not assault, threaten, harass, stalk or intimidate the other person.
Regardless of which court issues the order, violating an Order of Protection often times is charged as a felony. Those types of cases can be very dangerous for a client and unfortunately happen relatively frequently. A person can be arrested even for accidentally showing up at the same place as the alleged victim. Even if the alleged victim tries to drop the charges with the District Attorney’s Office, felony contempt charges are still often pursued.
Many of our clients have been charged with a violation of an Order of Protection yet have no awareness that their actions were criminal. A person with an Order of Protection against them may not understand that this usually means there can be absolutely no contact with the alleged victim. Our firm has been successful at demonstrating that violations of orders of protection are sometimes due to ignorance rather than criminal intent.
If you have an Order of Protection filed against you, it is essential to contact an attorney. We have aggressively and successfully challenged unwarranted Orders of Protection or fought to reduce the restrictions placed upon our clients. If domestic abuse or assault charges were filed in Criminal Court, we have argued to limit the terms of the order or to modify the order to allow our clients to move back into their homes or to retrieve property. In Family Court, we have had many Order of Protection petitions dismissed after establishing that a client did not pose a threat or by proving insufficient evidence existed to support an Order of Protection.