New York Divorce Recovery

Child Custody

Q. My husband wants a child custody schedule that heavily favors him. He calls this equal parenting rights. I've always taken care of the kids and have the parenting skills in the family. Do NYS child custody laws and family courts award parenting time to the mother usually? And how can I avoid a custody battle? Do I need to give in to shared parenting?

A. You have many questions there. New York custody laws instruct the family court to not give preference to one gender over another, although mothers win custody cases at least three-quarters of the time. Parenting skills are important, however custody cases aren't decided by whose skills are better, but rather on what is in the best interests of the child as seen by the family court. Kids and divorce mix best when their interests are put ahead of the parents. Custody battles happen when one or both parents dig their heels in, and make accusations against the other's parenting skills and/or parenting styles. If you go headlong into a custody battle, it'll get ugly. Avoid it at all costs. In any case, parents get the opportunity to agree on a Parenting Plan, Child Custody Schedule and Child Visitation Schedule. If you and your spouse fail to reach agreement, the family court imposes its own plan(s), so do your best agreeing on shared custody.

Q. Please explain how New York divorce laws define child custody.

A. New York statutes (or laws, if you like) define child custody in two ways. The first is the right and responsibility to make decisions for a child (legal custody). The other is the decision about where the child will live (residential or physical custody).

Q. What factors play into the family court's decision when deciding child custody?

A. Guided by the best interests of the child, courts will consider:

• Which parent has been the primary care-giver
• The parenting skill of each parent, strengths and weaknesses and their ability to care for the children
• Physical and mental health of each parent
• The child's wants, needs and desires
• The child's relationships with siblings and other members of the family
• Evidence of any domestic violence
• The degree to which each parent is willing to work with the other parent for the children's welfare

Q. I've been told that the Mother gets custody most of the time. Is that true?

A. The courts are guided by laws passed by the Legislature, and are instructed to not favor one gender over another. The reality however, is that most courts believe children are better suited with their Mother as primary custodian. More than 3/4 of all custody awards go to mothers today.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Q. Phrases such as joint custody and sole custody are casually used it seems. What are the differences in custody awards?

1. Joint custody signifies that the parents make major decisions about the children together, such as education, health, and religion. The everyday decisions are made by the custodial parent.
2. Sole custody means that just one parent makes decisions without regard to the wishes of the other parent. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery and what kind of religious training your child receives.

Q. If one gets awarded sole custody, will they have to allow visitation by the other parent?

A. Courts will generally encourage involvement by both parents, unless evidence is presented that puts the child in an unsafe environment.

Q. Are grandparents considered eligible for child custody?

A. You may be asking about visitation for grandparent, so we'll address both. Grandparents are eligible for custody when there is evidence that the parent(s) have demonstrated that they are not fit to care for the child. Grandparents must petition the court and be prepared to show evidence why a custody award to them is in the best interests of the children. For visitation by grandparents, the court must be petitioned to allow regular visitation for them. Often this becomes part of their adult child's divorce request. Aunts, uncles, and other relatives are also eligible for child custody under certain circumstances.

Q. My husband claims that I won't get much if any child support to help me with my custodial responsibilities. Is there something on-line that I can look at to approximate how much he will have to pay since I know what he makes?

A. Yes, a web site called All Law makes available a child support calculator for your use.

Q. If a court denies my request for custody, do they have to explain why?

A. Yes, when a court makes a decision on custody, it will provide a finding, which will detail the reasons behind the decision, and provide that to both parties. If one of you fails to show up for the hearing, the court will likely issue a default finding to the other parent.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

 

Q. What if my boyfriend and I never married, but had children and are now divorcing? Does he have the same custody rights if we had married?

A. Unless you both signed what is called an Acknowledgment of Paternity, he has no custody or visitation rights.

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A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health.

Download New York Divorce Forms

[Domestic Relations Laws - Article 13 - Section 240]

Marriage Annulment - Marital Annulment

Q. What does an marriage annulment do in New York State that a divorce does not?

A. A divorce decree ends the marriage between two people, determines how any support might occur between the parties, and how any marital assets might be divided. An annulment is a decree that the marriage never was, and never should have been.

Q. How does one know if they qualify to file for a marital annulment, or whether they need to go straight to a divorce petition?

A. An action for annulment in New York must begin within the first three years following the marriage.

1. Former husband or wife living,
2. Consent by force, duress or fraud - a marriage that has been obtained by fraud or misrepresentation,
3. Insanity - If your spouse is suffering from insanity for the past 5 years and it is deemed incurable,
4. Underage - one or both were under 18 years old,
5. Impotence - a physical disability or incapacity that doesn't allow a person to participate sexually in the marriage, or
6. Consanguinity - marrying someone too closely related to you.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Actions for annulment can take place at any time during the life of the person who is the target of the annulment action.

[Domestic Relations Laws - Article 5 - Section 7, 24, 140 ]

Child Support

As if there weren't enough challenges, you may feel like you've been thrown under the divorce bus. It's not the end of the world, although it probably feels like it. Hopefully we've covered the details enough here to give you a good framework with which to work.

**Special notice: New York State has finally passed laws that permit couples to divorce with no-fault grounds. Now all 50 states permit no-fault divorces. Welcome to the Twenty-First Century New York!

Q. My spouse and I are separating. Do NYS child support laws permit temporary child support or spousal support (maintenance)?

A. Yes, both child support and maintenance is possible. You will need to petition the court, and provide a financial statement.

Q. I know child support is based on the incomes of the parents. What are the percentages of parental income per child?

A. NYS child support guidelines require the following percentages be paid from gross income:

• 17% for one child,
• 25% for two children,
• 29% for three children,
• 31% for four children and
• 35% or more for five or more children.

Q. I can't afford a lawyer, but I know I need one. What can I do?

A. There are any number of organizations that provide free legal advice. Contact the New York Bar Association using the link above and they will refer you. Also be aware that if one spouse has complete control of the marital money and does not allow the other spouse access to hire an attorney, the court can order the attorney fees be paid out of the funds of the controlling parent.

Q. I hear that because the NYS child support are so archaic the state recognizes a Dominican Republic divorce. Is that true? Does New York child support get settled there?

A. Yes, that is true. Your state's divorce laws are archaic and New York does recognize these divorces. Both parties need to travel there to get it done, but do your states laws if you live outside of NY. In many cases you do not need to return back to court. As an aside, divorce in Guam is universally recognized, and after the parties appear there, the divorce normally goes through in a matter of weeks. Child support must be settled in a state court, rather than a territory.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Q. I can no longer afford my child support payment I was ordered to pay. Can I get them lowered?

A. Modifications to child support orders can be made if one petitions the court and demonstrates a significant change of circumstances. Even if you merged your divorce agreement into the divorce judgment, you can still have it modified. This of course also applies to one petitioning the court to raise the amount.

Q. Can the court reduce or eliminate my arrears of NYS child support?

A. No. Any accrual that occurred prior to a petition to get child support lowered cannot be reduced or eliminated.

Q. If you sign over your parental rights to a child do you still have to pay NYS child support?

A. It really will depend on your jurisdiction or state. Signing over parental rights does not necessarily relieve one of the child support obligation unless the other parents agrees. Where adoption is involved, being absolved of child support is more frequent.

Q. I want joint custody so I don't have to pay any child support. How can I get this done?

A. With joint physical custody there is still a payment of child support from the higher income parent to the lower income parent, usually determined by a sliding scale based on time with each parent.

Q. Will a new spouse have to pay child support?

A. No, a new spouse is not legally obligated to support the children of the new spouse's previous marriages or relationships. However, if the new spouse has joint assets (such a Community Property state) or a joint checking account those assets can be attached.

Q. Is there a place on-line that I can go to so that I might see the child support payments in my case with my ex-spouse?

A. Yes, the DCSE (Department of Child Support Enforcement) has a NYS child support log-in page where you can track payment status.

Q. At what age does NYS child support end?

A. The paying of child support ends with the child's 21st birthday, unless that child becomes emancipated.

 

[Domestic Relations Laws - Article 13 - Sections 236, 240, and 243]

Legal Separation - Marital Separation

Q. What are the marriage separation choices in New York State and what do they mean please?

A. Up until October of 2010, there were two types of marriage separation in New York. The first and by far the most common petition for separation was by both of you signing a legal separation agreement and living apart as per that agreement (and apart for more than one year). The Separation Agreement must have met certain requirements in form and language. The separation agreement appears to have been left unchanged, but the statutes now only require irretrievable breakdown of the marriage for at least six months. In a word, separating for a year in anticipation of a divorce is no longer possible.

Q. Can I file for Legal Separation in New York? How does the process go?

A. In New York, there is no means to file for a legal separation. Simply stated: If your spouse does not agree to a legal separation, or worse, you cannot find your spouse, you cannot get legally separated. Only if you both are in agreement can a legal separation occur. Further, you must present to the court a written Separation Agreement that includes details on who will pay the bills, where the children will live (if any), any and all child and spousal support payments that will be made, visitation by and for any children, and how the assets of the marriage will be divided.

Q. Why get a legal separation if a dissolution (divorce) will untangle the lives?

A. Legal separation is frequently pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage's, or do not want to wait the state statutory waiting period for termination of marital status.

Q. Are there grounds for separation that must be claimed to get a separation?

A. Yes, in order to get a legal separation, one of the following conditions must have occurred:

• cruel and inhuman treatment that endangers your physical or mental well being,
• abandonment,
• neglect or refusal to provide for your support ,
• the commission of an act of adultery,
• confinement of the defendant in prison for a period of three or more consecutive years

 

 

Q. I'm told there is a statute of limitations on behavior that would qualify as one of the grounds for divorce or separation?

A. You heard correctly, grasshopper. The actions and behaviors that would qualify as a ground must have occurred within five years of your filing the action. [210] Check the statute for the exceptions to this rule.

[Revised Statutes, DOM (Domestic Relations), Article 5, Section 72.]

Divorce Settlement - dividing the marital assets

Q. We have quite a few assets from the marriage, and I'm concerned how much of a 'hit' I'm going to take in this divorce? Will my adultery have an impact on the divorce settlement?

A. First of all, marital misconduct doesn't play into a court's decision in most cases concerning a divorce settlement. Secondly, you and the spouse have the opportunity to craft a separation agreement which settles all issues including dividing the assets. If you are unable to agree on an settlement, the court will produce its own divorce settlement that is consistent with New York being an 'Equitable Distribution' state. The judge will return pre-marital assets to their owner, and then divide the balance of the assets equitably, but not necessarily evenly.

Q. My husband wants to offer me a divorce settlement from his retirement accounts (401(k), IRAs, etc) using a QDRO, but I suspect the offer is very low. Is there somewhere I or we can go to get a fair valuation and distribution?

A. You have two choices. You can have your divorce attorney prepare a proposal (they usually hire an outside, third-party for an evaluation) at significant cost, or you can get your soon-to-be-ex to agree to an accurate but affordable method using The QDRO Desk software.

Q. I understand New York's divorce laws have changed. When did they change and how do the changes affect dividing assets and divorce settlements?

A. NY divorce laws changed in October 2010. Gone are fault reasons for divorce, replaced with the sole ground of irretrievable breakdown. Legal opinions on the new laws seem to agree that there are gaps in the new law. An example of a gap would be where one does not want the divorce because property will be sold in a bad housing market (like now) and then divided.

Scholars suggest there is no longer a way to stop the divorce with the new statutes. Another murky area is around spousal support. Previously a judge would make decisions on this matter, but now a statute specifically addresses amounts to be paid but misses on particulars on how various factors affect the final amount. For those earning less than $500,000.00, a mathematical formula for temporary support is the lesser of 30 percent of the payor's income minus 20% of the payee's income, or 40 percent of the sum of the two incomes minus the payee's income.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Everyone with incomes below $500,000.00 are subject to the same provisions of the law. Those incomes amounts above the $500,000.00 threshold are included in the equation at the judge's discretion, who applies more subjective factors.

The new divorce statute mandates for a worksheet to calculate the percentage of income the more affluent spouse will pay to the other. It does not appear to be clear in figuring the percentage of income to be paid, whether the spousal maintenance should be subtracted from gross income first or the child support. Scholars agree that there does not appear to be any guidance as to whether subtractions are to be made from gross income to child support first, off the top, to arrive at the amount of support to the spouse or if is it the other way around.

If the payor is self-employed or has a cash business, it becomes more difficult to determine real income (easier for portions of the income to be hidden). Another gap seems to be around the temporary award in that the temporary award (before discovery) will tend to not have the entire financial picture and could become permanent without getting the complete picture.

Q. What criteria will the court consider when it must produce a divorce settlement for the parties?

• The income and property of each at the time of marriage, and again at the time of the filing for divorce,
• The length of the marriage and the age and health of both,
• The custodial parent's need to occupy residence and its contents,
• Any loss of inheritance and pension rights should the action proceed to divorce; any award of alimony or maintenance,
• The contributions and services of each spouse to the career of the other,
• Liquidity of all marital property,
• The probable future financial circumstances of each,
• Any interest in a business, corporation or profession each may have during the marriage; taxes,
• If either party wastefully dissipated any assets prior to settlement,
• The transfer of any assets ahead of the filing such that it would deny the other a fair share and judicial discretion over any other issue.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[Domestic Relations Laws - Article 13 - Section 236]

Alimony - Spousal Support - Maintenance

Q. Do New York State divorce laws allow for spousal support or alimony?

A. New York laws allow the court to order alimony to a dependent spouse, in such amount as justice requires, if the dependent spouse lacks sufficient property and income to provide for his or her reasonable needs, and if the other party has sufficient property or income to provide for the reasonable needs of the other. In determining the amount and duration of maintenance the court shall consider:

• The income and property of each including marital property distributed in the divorce,
• The duration of the marriage and the age and health of both parties,
• The present and future earning capacity of both parties,
• The ability of the party seeking alimony to become self-supporting and, if applicable, the period of time and training needed to become self-supporting,
• Reduced or lost lifetime earning capacity of the party seeking alimony as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage,
• The presence of children of the marriage in the respective homes of the parties,
• The tax consequences to each party,
• Contributions and services of the party seeking alimony as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party,
• The wasteful dissipation of marital property by either spouse,
• Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration,
• The court may award permanent alimony, but an award of alimony terminates upon the death of either party or upon the recipient's remarriage,
• The standard of living of the parties established during the marriage, and
• Any other factor which the court shall expressly find to be just and proper.

 

 

[Domestic Relations Laws - Article 13 - Section 236]

Visitation - the kids spending time with the other parent

Q. Can my soon-to-be ex and I put together our own visitation plan rather than accept the court's plan?

A. Yes, you can. During the divorce process, the parties have an opportunity to negotiate and agree to a visitation plan as part of a parenting plan; one that works well for everyone. Of course, if there is no agreement, the court can order mediation, or impose a schedule of its own.

Q. Assuming no agreement can be reached between my wife and I, what's the typical visitation schedule I can expect from the court?

A. A standard visitation agreement may include: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

Q. Any suggestions on what we might include in a visitation agreement?

A. Make sure your spouse understands how important it is to agree on terms for shared parenting. You really don't want the family court deciding these things. Shoot for joint custody and don't get hung up on legal custody as long as you both can make major decisions for the child. Your best chance of success in deciding shared parenting and shared custody would be to use Parenting Time©. If cooperation isn't possible, negotiate. We would recommend you consider including language that defines which parent will pick up and drop off children, what each will do if one parent becomes habitually late, a provision for the right to be called first if the parent caring for the children needs to make other arrangements such as finding a sitter, and how much much exposure they'll want for their children should a new partner enter either parents life. Issues such as having those new partners stay overnight should be decided. Consider any other matters that would reduce the friction in the future.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

[Domestic Relations Laws - Article 8 - Section 1081]

Grounds for divorce

Q. Do New York State divorce laws allow a no-fault ground for divorce, such as irreconcilable differences? If not, what is the legal separation I keep hearing about?

A. Finally, New York does permit no-fault divorces. Up until October 2010, NY was the only remaining state that did not permit no-fault divorces. Parties could legally separate for a year once a separation agreement had been submitted and accepted by the court, and then be divorced. (Some refer to this method as a mutual "consent divorce") At the end of the year apart either could request it be converted to a dissolution. That has been changed (see below).

Q. What are the fault grounds for divorce in New York State?

A. The New York Legislature changed the landscape for divorce in effective in October 2010. The only basis for divorce now is irretrievable breakdown of the marriage for at least six months. Fault grounds are now a thing of the past.  

 

[Domestic Relations Laws - Volume 8 - Section 170 and Article 10, Section 170, and Article 13, Section 230]

Residency - You must be a legal resident to file

Q. What are the residency requirements to file a petition for divorce, separation or annulment?

A. Residency requirements are one of the following:

• The marriage occurred in New York and one spouse has been a resident for one year just preceding the filing, or
• Each have resided in this state as husband and wife and either is a resident when the filing occurred have been a resident for one year prior to the filing, or
• The cause for the action occurred in the state and either has been a resident for one year prior to the filing, or
• The cause for the action occurred in the state and both are residents at the time of filing, or
• Either has been a resident of the state for two years prior to the filing.

 

 

[Domestic Relations Laws - Article 13 - Sections 230 and 231]

Mediation - Using a Mediator to resolve differences

Q. Do divorce laws in New York State mandate that mediation or counseling be a part of a typical divorce?

A. Mediation and/or counseling is, of course, always available privately. The family courts will order the parties to either if it feels the parties will benefit from it. New York, at the conclusion of the proceeding for dissolution, does make the parties aware of an educational course on how divorce affects children, but that course is entirely optional.

Q. I'm all alone (besides my children) and don't know how I'll get through getting divorced, and I don't know if I can do the shared parenting time thing. I can't afford counseling. Where do I turn?

A. We all need some help processing all this angst. If counseling is out, this site has a Divorce Bookstore sponsored by Amazon.com, where you can find affordable books on parenting time, kids and divorce, shared custody, parental rights, custody battles, joint custody, co-parenting, child visitation, how to be divorced, life after a separation and just about every consideration pertaining to being divorced. Spend some time and a few bucks to help yourself get through this nightmare in one piece.

 

Grandparents visitation rights

Q. Can grandparents ask for and receive visitation privileges?

A. Yes. New York State divorce laws and federal statutes permit grandparents the right to petition the court for visitation.

 

 

 

 

Waiting Period

Q. Is there any kind of waiting period in the divorce process?

A. Excluding the one year residency requirement, there are no waiting periods, and other than the year of separation required for a consent divorce, there are no waiting periods. There are no restrictions against remarriage following a divorce decree.