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Really. Take a deep breath. If nothing else, we'll
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Child Support
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Child Custody
| Q. |
My
spouse and I are separating. Do New York divorce
laws permit temporary child support or spousal
support (maintenance)? |
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| A. |
Yes, both child
support and maintenance is possible. You will
need to petition the court, and provide a financial
statement. |
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| Q |
I know child
support is based on the incomes of the parents.
What are the percentages of parental income per
child? |
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| A. |
NYS requires
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 at least
35% for five or more children. |
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| Q. |
I can't
afford a lawyer, but I know I need one. What can
I do? |
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| 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. |
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| Q. |
How is the typical
child support payment determined? |
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| A. |
Each state employs a guideline
or mathematical formula. New York divorce laws
are no exception. New York uses the 'Wisconsin
model' method of calculating child support, which
takes a specific percentage from the parents'
gross income. The % are: 1 child- 17%, 2 children-
25%, 3 children- 29%, 4 children- 31%, 5 or more
children- no less than 35%. |
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| Q. |
I hear that because New York
divorce laws are so archaic the state recognizes
a Dominican Republic divorce. Is that true? Does
child support get settled there? |
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| A. |
Yes, that is true. New York'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 New York. 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. |
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| Q. |
I can no longer afford the
child support payments I was ordered to pay. Can
I get them lowered? |
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| 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 course also applies to
one petitioning the court to raise the amount. |
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| Q. |
Can the court
reduce or eliminate my arrears of child support? |
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| A. |
No. Any accrual
that occurred prior to a petition to get child
support lowered cannot be reduced or eliminated. |
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| Q. |
If you sign over
your parental rights to a child do you still have
to pay child support? |
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| 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. |
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| Q. |
I want joint
custody so I don't have to pay any child support.
How can I get this done? |
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| 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 |
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| Q. |
Will a new spouse have to
pay child support? |
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| 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. |
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Visitation/Co-Parenting
| Q. |
Can
my soon-to-be ex and I put together our own visitation
plan rather than accept the court's plan? |
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| A. |
Yes, you can.
During the divorce process, the parties have an
opportunity to negotiate and agree to a visitation
plan that works well for everyone. Of course,
if there is no agreement, the court can order
mediation, or impose a schedule of its own. |
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| Q. |
Assuming no agreement
can be reached between my wife and I, what's the
typical visitation (parenting) schedule I can
expect from the court? |
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| A. |
A standard visitation
(parenting) 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. |
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| Q. |
Any suggestions
on what we might include in a visitation (parenting)
agreement? |
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| A. |
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. Any other matters
that would reduce the friction in the future. |
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Alimony/
Maintenance/ Spousal Support
| Q. |
How
is alimony or spousal support (or maintenance)
handled in New York State? |
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| A. |
Alimony
is awarded in order to help a spouse to achieve
independence. It can be awarded temporarily or
permanent, during the proceedings or afterward.
Alimony is more likely to be awarded in cases
where one parent stayed home to care for children
than if they were out in the work force. However,
even employed dependent spouses get awarded alimony.
A marriage of ten years or longer often is a benchmark
for judges when considering the award of alimony,
although there is no specific statute that reflects
a minimum length to a marriage for alimony. |
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| Q. |
What criteria
does the New York court look at when considering
alimony (or spousal support)? |
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| A. |
A court may consider
any of the following (and any other relevant factor):
The income and property of each party, The length
of the marriage as well as the age and health
of both spouses, The current and future earning
abilities of each spouse, The ability of the spouse
seeking maintenance to become self-sufficient,
Reduced lifelong earning capacity as a result
of having foregone career opportunities or education
during the marriage, The presence of children
of the marriage in the homes of each party, Tax
consequences to each, The wastefulness of marital
property by either spouse, If a spouse has tried
to hide assets in anticipation of divorce or alimony
requests and Contributions as a spouse, parent,
wage-earner and homemaker of the spouse seeking
maintenance and to the career or career potential
of the other spouse. |
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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? |
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| A. |
No, New York
does not. It is the only remaining state that
does not permit no-fault divorces. Parties can
legally separate for a year once a separation
agreement has been submitted and accepted by the
court. (Some refer to this method as a mutual "consent
divorce") At the end of the year apart either
can request it be converted to a dissolution. |
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| Q. |
What are the
fault grounds for divorce in New York State? |
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| A. |
You must sue
your spouse and claim one of the following reasons
(faults) for the termination of your marriage.
You will need to establish proof of the ground. Cruel
and inhuman treatment is by far the most
used, as many defendants will stipulate no contest
to be out of the marriage. Other grounds are: abandon the
marital home for a year or more, been confined
to jail or prison for at least three
consecutive years after the marriage and adultery. |
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Marriage
Annulment
Marital Annulment
| Q. |
What does an marriage
annulment do in New York State that a divorce
does not? |
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| 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. |
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| 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? |
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| A. |
An action for annulment
in New York must begin within the first three
years following the marriage. A forced marriage
(duress) would be an example of a marriage qualifying
for an annulment. Others would be: Fraud- a
marriage that has been obtained by fraud or misrepresentation, Insanity-
If your spouse is suffering from insanity for
the past 5 years and it is deemed incurable, Underage-
one or both were under 18 years old, Impotence-
a physical disability that doesn't allow a person
to participate sexually in the marriage, or Consanguinity-marrying
someone too closely related to you. |
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Marriage
Counseling/
Mediation
| Q. |
Do
New York divorce laws mandate that mediation or
counseling be a part of a typical divorce? |
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| A. |
Mediation and/or
counseling is, of course, always available privately.
The New York State 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. |
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Legal
Separation/
Marital Separation
| Q. |
What
are the marital separation choices in New York
State and what do they mean please? |
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| A. |
There are two types of marital
separation in New York. The first and by far the
most common petition for separation is 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 meet certain requirements in form and language.
All of the issues addressed in a divorce, such
as custody, child support, spousal support, and
distribution of assets must be addressed in the
Legal Separation Agreement. The second and seldom
used method of obtaining a legal separation is
by obtaining an order of legal separation from
the Court. Many people who, for personal or religious
reasons, do not wish to obtain a full divorce
can get a "limited divorce" instead.
New York has no legal separation. A "Limited
Divorce" in New York is similar to what is
called a "Legal Separation" on other
states. Limited divorces are very much like an
absolute divorce with the major difference being
that the parties cannot remarry. You are, in effect,
still legally married at the same time that you
are legally separated. |
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| Q. |
Why get a separation
if a dissolution (divorce) will untangle the lives? |
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| 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. |
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Waiting
Period
| Q. |
Is
there any kind of waiting period in the divorce
process? |
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| 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. |
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Divorce
Settlement
| 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? |
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| A. |
Firstly,
marital misconduct doesn't play into a court's
decision in most cases. 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. |
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| Q. |
What criteria
will the court consider when it must produce a
divorce settlement for the parties? |
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| A. |
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. |
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Residency
Requirements
| Q. |
What
are the residency requirements to file a petition
for divorce, separation or annulment? |
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| A. |
Residency requirements are
one of the following: 1. The marriage occurred
in New York and one spouse has been a resident
for one year just preceding the filing, or 2.
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 3. The cause for the action
occurred in the state and either has been a resident
for one year prior to the filing, or 4. The cause
for the action occurred in the state and both
are residents at the time of filing, or 5. Either
has been a resident of the state for two years
prior to the filing |
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