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.
New York State now offers the option of what is referred to as a No-Fault Divorce, which means that you no longer have to choose your grounds, i.e., adultery, abandonment etc. You’ll still need to be able to prove that there was an irretrievable breakdown for at least six months, if not more.
Regardless of how long your divorce takes; sometimes months or even years, the likelihood that you could settle out of court is high. Taking experts into account can prove to be quite costly; accountants and evaluators are expensive and ultimately, having a judge make a final decision about your future is always a 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.
- UnContested or Contested divorce
- Visitation and Child Custody: Equitable distribution
- If applicable, Alimony and child support
- 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.