Areas of Practice

Family Law | Divorce and Separation

Divorce and Separation

New York State law only recognizes divorces based upon fault-based criteria, though the parties may agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after one year. The parties may also agree to an uncontested divorce as long as one of the parties is willing to allege one of the fault based grounds or has the requisite separation agreement or judgment.

Grounds for Divorce

The grounds for divorce in New York State are limited to:

Division of Marital Property

In New York the law of equitable distribution determines the division of property at the end of a marriage. The court examines several factors in determining the fair division of the property that was accumulated during the marriage and the debts of the parties.

Property accumulated during the marriage is known as Marital Property. Distribution of marital property, unless there is an agreement otherwise, is based on several factors including: The income and property of each party, the age and health of the parties, the need of a custodial parent to occupy the marital residence , the likely future financial circumstances, and the tax consequences.

Property acquired prior to marriage is known as Separate property. Separate property also includes inheritances, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.

Spousal Support

Today alimony is known as "maintenance" or "spousal support." Unlike child support, there is no set formula to calculate spousal support. A grant of spousal support depends on the facts of the case, such as the disparity between the income of the parties, the duration of the marriage, the health of the parties, and the presence of very young children. In New York spousal support is rarely granted on a permanent basis, except in cases of physical or mental disability or when the parties are elderly. Generally, it is granted for a set period of time so the other party can get back on their feet after the termination of the marriage. The length of time depends on the facts of the case as the judge sees fit to award. The factors involved the judge will consider include:The present and future earning capacity of both parties, Contributions of one party to the career potential of the other, The presence of children of the marriage in the homes of the parties.

Child Custody & Child Support

Child custody and child support are often the most difficult part of your divorce. These issues are usually decided within your divorce action, but sometimes they may be initiated or modified in family court.

There are three keys issues when children are involved in a divorce or separation:

  1. Child Custody is separated into categories; physical custody (where is the child's main residence) and legal custody (who makes decisions about the child) Child Custody may be joint or it may be sole as determined by agreement or by court order. If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child (or children).
  2. Child Visitation - the parent who does not have physical custody has either: a) reasonable rights of visitation, b) a specified visitation schedule, or c) is limited to supervised visitation. Only in very rare cases may the non-custodial parent be denied visitation. Usually this is for very specific reasons such as severe substance abuse, history of domestic violence or lack of interest in the child.
  3. Child Support - In New York the amount of child support paid by the non-custodial parent to the custodial parent is determined by the state Child Support Standards Act. Based on an adjusted gross income formula the payments are 17% for one child and 25% for two children. There are limits that can be reached for individuals with very low income below the poverty level or very high income (statutorily above $80,000 but usually over $150,000) that will allow for deviations from these percentages. Over and above monthly or weekly child support, the court is also able to award a child support "add-on" for daycare costs if the custodial parent works, educational costs for the child (usually limited to college, not private or religious elementary or high school), and medical expenses, including the cost of medical insurance.

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