Q: Are grounds needed to obtain a divorce?
ANSWER: Yes. New York State is not a No-Fault state for the purposes of divorce: if you want a divorce and your spouse does not consent or will not consent to a divorce, then in order for you to obtain a divorce, you must have proof that your spouse is guilty of a designated fault ground for divorce. The most commonly used fault grounds are adultery, actual and constructive abandonment, and cruel and inhuman treatment.
“Adultery” is the commission of an act of sexual intercourse, voluntarily performed by a spouse with a person other than the plaintiff, after the marriage of plaintiff and defendant. Adultery requires that you have independent proof of the adultery. Admissions by your spouse of the adultery may not be enough since adultery remains a crime in New York State and persons may not be forced to give testimony that may tend to incriminate themselves.
“Actual abandonment” means, in a general sense, that your spouse has left you for at least one year with no intention of returning and for no valid reason. If you consented to the departure, then it may not qualify as an abandonment.
“Constructive abandonment” means that your spouse has refused to have sexual relations with you for at least one year for no valid reason. Again, if you have consented to the lack of sexual relations, it may not qualify as an abandonment.
“Cruel and inhuman treatment” is similar to a “catch-all” ground. To prevail using this ground, you must convince the Court that if you continue to reside with your spouse, he, she, or the relationship will harm you. If your spouse has physically abused you or if there is such tension, acrimony, fighting, or unhappiness in the household that it is affecting your physical and/or emotional well being, then you may qualify for a divorce under this ground. The Court will be interested in knowing whether you have consulted a doctor, psychologist, therapist, religious cleric, etc. for help or guidance. The longer you have been married, the more proof will be required by the Court to obtain a divorce using this ground.
If none of these grounds exist but your spouse does agree that the marriage is essentially over, and if the two of you have negotiated and signed a Separation/Property Division Agreement, which meets the statutory legal requirements, and if the Agreement or a memorandum of such agreement has been properly filed with the County Clerk, then either spouse may commence a divorce action one year or more after the signing of the Agreement. The Court will require you to prove that you have lived separate and apart pursuant to the Agreement for at least one year. Pursuing a divorce on this ground is usually the least expensive in terms of money and the spending of emotion. Once the Agreement is signed, you are legally separated, but you and your spouse remain husband and wife until a divorce decree is signed and entered.
Defenses may exist as to a cause of action for divorce based upon any of these grounds. It is important that you consult an attorney before assuming that you have a valid cause of action for divorce.
Q: What is custody and how is it determined?
ANSWER: Custody essentially means decision making ability. If you have sole legal custody of your children, then you are free to make all of the decisions necessary in their lives. You are free to consult their 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, then you are free to make the decision. Be aware 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.
Q: Will I have less visitation time with my child if the other parent has sole custody?
ANSWER: Not usually. Custody equates with decision making, not the right to spend time with a child. The parent who has sole custody has the right to make most of the decisions for a child in the event that both parents cannot agree. When parents agree to share 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 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 custody.
Q: If my spouse has sole 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?
ANSWER: 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). I have had success in blocking a move of shorter driving distance. 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.
Q: Am I a candidate to obtain a protective order and, if so, how do I go about getting one?
ANSWER: 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 harms way. The Family Court and Criminal Courts in each county in New York State are specially equipped to handle Protective Order applications quickly and usually (if immediate temporary relief is necessary) on the day that the application is received.
Q: How is child support determined?
ANSWER: 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;
I caution you that 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.
Q: Who pays child support?
ANSWER: Generally, the parent who does not have the children with them for the majority of the time will be the parent obliged to pay child support.
Q: Will I be able to pay less money in child support than the child support statute requires?
ANSWER: 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.
Q: What if I have the children a good deal of the time or even 50% of the time?
ANSWER: 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 I always encourage my clients to seriously consider good faith negotiation as the preferable route in resolving your dispute.
Q: Until what age must a parent support a child?
ANSWER: 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 birthdate.
Q: 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 graduate degree?
ANSWER: 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. The same usually holds true even if the child is disabled.
Q: Will my spouse have to pay me maintenance (alimony) after the divorce, and if so, for how long?
ANSWER:If a Court is asked to make that determination, there are at least 11 factors that it will consider, as set forth in Domestic Relations Law Section 236 Part B(6). Here are several of what I consider to be the more significant of these factors:
This is a complex determination and one that will be affected by a host of considerations.
Q: Can my spouse remove me from our home?
ANSWER: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.
Q: May the children and I continue to live in our home after the separation and divorce?
ANSWER: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.
Q: Am I entitled to share in the value of the home even though title is not in my name?
ANSWER: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.
Q: 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?
ANSWER: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.
Q: Will the Court force me to sell the home?
ANSWER: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.
Q: Should they be cancelled?
ANSWER: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, I recommend 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.
Q: Should I withdraw all the money from joint accounts to protect against my spouse grabbing or hiding the funds?
ANSWER: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.
Q: If I own or have an interest in a business will my spouse share in its value?
ANSWER: 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.
Q: Will my spouse be able to share in the value of my license or advanced educational degree?
ANSWER: 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. The value of the license or advanced educational degree is actually determined by calculating whether the license or degree has or is likely to enhance your earnings over your expected work life. 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 enhanced earnings 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 marriage while your license or degree was being acquired (e.g. – providing financial support, raising children, etc.), what percentage of the cost was funded by marital earnings, etc.
Q: What courts may be involved in a matrimonial, custody or support matter?
ANSWER: Either the Supreme Court or Family Court in the county in which you reside or, if your child does not reside with you, in the county where your child resides.