Matrimonial and Family Law - Frequently Asked Questions
HOW MUCH WILL MY DIVORCE COST?
The cost of your divorce will depend on the number of contested issues and the complexity of the financial and custody issues. If you and your spouse agree on issues such as equitable distribution of the marital property, custody of the children and spousal support, the legal fees and disbursements will be reasonable and quite affordable. If you are engaged in a battle on every front the process can become quite expensive. Generally speaking, the more complex you’re the issues pertaining to marital assets and claims of separate property such as pre-marital property or a personal injury settlement the more expensive your divorce will be. In addition to a retainer fee that is paid against hourly billing, there are filing fees that are paid to the Clerk of the Court and disbursements for Pension evaluations, real property appraisals and forensic accountant fees to determine the value of a business owned by one of the parties. If the parties cannot agree on custody and/or parenting time or there are allegations of neglect or abuse then the court most often will appoint a Law Guardian who is the lawyer for the children. The parties are required to pay the Law Guardian’s legal fees and their time is also billed hourly. The initial retainer fee charged by Glass & Glass is paid at the time the firm is retained and the client will be billed on an hourly basis for all legal work including time spent on the phone, meetings and drafting legal documents, correspondence and time spent in court. The client will also be billed for all court fees and disbursements paid on behalf of the client for items such as court transcripts, service of process, subpoena fees and like charges. In addition the fees due to the Law Guardian, a forensic accountant, real estate appraiser or Pension Consulting Company must be paid by the client directly.
When the client retains the firm a written retainer agreement and client’s rights statement is signed by the attorney and the client setting forth how the client will be billed and the documents are filed with the court.
HOW LONG DOES THE PROCESS TAKE AND WHAT DOES THE PROCESS LOOK LIKE?
After a free initial telephone consultation one of our attorneys will meet with you in person when you are prepared to retain the firm’s services. At the initial meeting, we will discuss all of your assets, debts, expenses and income and the circumstances leading to your marital difficulties. You will be required to complete a Sworn Statement of Net Worth and produce three years of income tax returns, bank statements, stock statements credit card statements and other evidence of your finances. We will exchange these documents with your spouse’s attorney and begin working toward an amicable settlement of your divorce. If the issues cannot be settled then it is imperative to have the court intervene.
If you are the party initiating the divorce, the initial approach is to attempt an out of court settlement or uncontested divorce. This process begins with a letter to your spouse asking that they have their attorney contact us to discuss the matrimonial difficulties and an amicable resolution. If the issues cannot be settled then you would file a Summons and Verified Complaint in an action for Divorce and a process server would serve the papers on your spouse. This begins the divorce proceeding.
If your spouse filed for divorce and you were served with divorce papers (i.e. a Summons with Notice or Summons with Notice and Verified Complaint), you are required to serve and file a Notice of Appearance and Demand for a Complaint or a Verified Answer with the Court. The next step is to open a dialogue and attempt an out of court settlement. If an agreement cannot be reached the next step is to file for a Preliminary Conference with the trial judge who will be assigned to your case.
The first step in trying to attempt an amicable settlement is to sit down at a four way meeting with the parties and the attorneys to find common ground and then send a settlement proposal to your spouse’s attorney. Issues such as equitable distribution of property, the marital residence, retirement benefits, custody, child support and spousal support are addressed. Once you come to a preliminary agreement of all terms, a Divorce Settlement Agreement is drafted and exchanged for comment between both attorneys. Sometimes it takes follow up meetings or letters to resolve all of the issues. Once the Divorce Settlement Agreement is signed off on by both parties, the Plaintiff generally submits an “uncontested” submission package to the court, which includes the proposed Judgment of Divorce. It takes from 6 to 8 months from the time the papers are submitted to the Matrimonial Clerk’s office to get a finalized Judgment of Divorce in Suffolk County and Nassau County; Queens County can take a bit longer.
If at the outset there are highly contested issues or if negotiations at any point break down or if there are other major issues that are non-negotiable such as custody, domestic violence etc., either party may file a request for judicial intervention to have a judge assigned to the case and schedule a Preliminary Conference date, and either party may file a motion with the court seeking temporary support pending the final judicial determination or later settlement. At that point, a judge is assigned to the case and the parties and their attorneys are required to appear in court on average once a month until the divorce is settled or until there is a trial. In the interim, parties are required to exchange discovery documents, such as financial information, credit card statements and tax returns.
If the parties agree and settle their divorce out of court, the process can take anywhere from 6 months to one year. If the parties don’t agree and there is litigation, it can go on for a year, two or three and depending on the situation, maybe more. Today, the courts highly encourage the parties to settle their divorce without a judicial determination, however, there are circumstances that require a full blown trial where both sides get their day in court and a judge decides their dispute. This is most often very expensive.
Only a small percentage of cases are truly “uncontested.” Often times the parties need legal representation to help them mediate an agreement that is fair and equitable for both sides. Likewise only a small percentage of cases are truly “contested” and require a full blown trial of all issues.
WHAT CAN I EXPECT AT MY FIRST MEETING WITH AN ATTORNEY
Meeting with a divorce attorney and discussing your marital difficulties can be an emotional and overwhelming experience. You should be prepared to detail the history of your marriage (i.e. work history, children, who is the primary caregiver, lifestyle maintained during the marriage, living expenses etc.). You should try to bring as much financial information with you as possible, as this will only help your attorney better assess your situation.
WHAT HAPPENS AT A PRELIMINARY CONFERENCE
The Preliminary Conference is the first time that the parties appear in court before the assigned Justice. The attorneys and the parties are required to appear in court and complete the discovery schedule, discuss the pendent lite issues of support and parenting time that will govern the parties pending a final determination, and a preliminary conference order is then signed by the judge. The preliminary conference order is a court order that controls the discovery process including the schedule for financial disclosure and depositions of the parties. It sets forth the time frame for completion of all matters before a trial date is scheduled. This order will list which issues are resolved and unresolved and will set forth what expert witnesses are required and the financial obligation of the parties to pay for such experts as a forensic accountant, real estate appraiser, Law Guardian, forensic psychologist or other necessary expert. Prior to the preliminary conference, both parties are required to file a statement of net worth, three years of income tax returns and a recent pay stub at the very minimum. The statement of net worth is a burdensome financial disclosure document that is first prepared by the client and reviewed by the attorney. After the preliminary conference, both parties serve discovery demands on each other and both parties are required to answer these demands. The demands include items such as 3 to 5 years of bank statements, retirement account statements, credit card statements. The client must provide a complete financial picture of the marital assets and liabilities in order for the attorneys to effectively represent the client’s best interests. If the parties cannot come to terms after all discovery is completed, the judge will set down the case for a trial.
WHO WILL PAY MY COUNSEL FEES?
Under the current law, there is a presumption that the monied spouse pays for the non-monied spouse’s attorney fees. The intent of the legislation is to create an equal playing field. This means that if you and your spouse agreed that one party would stay home to raise the children, and the other party would be the wage earner during the marriage, in this situation, the working spouse would have to pay their own attorney fees and the spouse’s reasonable attorney fees. If counsel fees are contested a motion for counsel fees is filed with the court. Notwithstanding a judicial determination of the motion for counsel fees, the attorney is entitled to be paid by his/her client as set forth in the attorney/client retainer agreement and the client is be entitled to seek payment from his/her spouse. If the spouse fails to pay court ordered counsel fees, the client is nevertheless responsible for his/her attorney’s fees and may bring a motion for a Money Judgment against the spouse who violated the court’s order and seek a further order for additional counsel fees.
If the parties settle their divorce out of court, usually the attorneys help mediate the amount of counsel fees to be paid by the monied spouse.
To avoid expensive motion practice it makes sense for both parties to settle the issue of counsel fees and to continue to keep status quo for payment of the marital residence and other joint expenses consistent with pre-commencement practice.
WHAT SHOULD I DO ABOUT MY LIVING SITUATION AT THE MARITAL RESIDENCE?
Whether you should move out of the marital residence depends on your specific circumstances. You should consider the following: the most important issue is safety of the household members, whether or not you can afford to move (i.e. you may still be responsible for the martial residence expenses in addition to your new living expenses), and whether you intend to return (if you leave your spouse may seek a court order granting him/her exclusive use and occupancy of the marital residence excluding you from returning. The children generally will remain in the home on a temporary basis until custody issues are resolved. The best approach is to discuss your individual circumstances with your attorney before you move out.
If you can prove in court that you are a victim of domestic violence, if your children are in danger or if your spouse voluntarily leaves the marital residence without any intention to return, the court will set a hearing on the issue of “exclusive use and occupancy” of the marital residence. Exclusive use and occupancy means that you can change the locks at the marital residence and your spouse is not entitled to return until the matter is resolved. If there is a history of domestic violence, you can obtain an Order of Protection through Family Court by filing a petition or filing a police report.
SHOULD I LEGALLY SEPARATE FROM MY SPOUSE OR SHOULD I GET DIVORCED?
The primary reason parties chose to enter into a Separation Agreement as opposed to a divorce is to continue Family Medical benefits. Often the Family coverage will continue during the period of separation but you need to look at the plan terms to verify that you are still eligible for coverage. The downside to remaining separated to continue the medical benefits is that you cannot file a QDRO dividing the retirement plans or pension until after the Judgment of Divorce is entered. Again the decision turns of on the specific circumstances of your case. A Separation Agreement resolves all issues including equitable distribution of marital property and determination of Separate property, child support, custody and spousal support. The terms would be negotiated and mediated between the parties and their attorneys and can be converted to a Judgment of Separation or filed as an Agreement with the County Clerk. If you do not convert the terms of the Agreement to a Judgment of Separation you cannot get Child Support Enforcement Services and you cannot enforce the Agreement in Family Court. The best decision is to spend the money to get your Judgment of Separation.
Under New York Domestic Relations Law, if parties separate pursuant to a written separation agreement and live separate and apart for one year or more, after one year, the separation can be converted to a Judgment of Divorce, which can be initiated by either party. This ground for divorce is rarely used today because New York now recognizes no fault grounds, or irretrievable breakdown of the marriage for at least 6 months.
HOW CAN SOCIAL MEDIA EFFECT MY DIVORCE CASE?
Today social media is an important way in which we communicate with each other, however, often times, people start to divulge too much information without thinking about the consequences. Online activity can sometimes reveal things about yourself that do not help you in your divorce case. The best advice is to refrain from posting comments, tweeting or sharing photos online during the pendency of your divorce.
WHAT CONSTITUTES “MARITAL PROPERTY” TO BE DIVIDED UNDER NEW YORK EQUITABLE DISTRIBUTION LAW?
Under New York law, all assets acquired “during” your marriage are considered “marital” which are to be divided “equitably,” which does not always mean 50/50. Therefore, assets are valued from the date of your marriage to the date the action for divorce was commenced; commencement is when filed with the county clerk. Some assets are part marital and part separate. For example, if your spouse contributed to a pension plan or 403B retirement plan prior to the marriage and continued to earn pension credits and make 403B contributions during the marriage, you will be entitled to equitable distribution of the marital portion only. A Qualified Domestic Relations Order is prepared by a pension company, filed with the court and when entered in the office of the County Clerk a certified copy is filed with the Plan Administrator to distribute the asset. If the non-participant spouse rolls his/her share over into an IRA rollover the asset is rolled over tax free upon divorce. Separate property is property that you acquired prior to the marriage and maintained in a separate account and did not co-mingle with marital funds, property you received an inheritance or a personal injury settlement or a gift from someone other than your spouse, during your marriage. You must have maintained the property in your separate name and the burden of proof to establish separate property is on the party claiming separate property. If you can establish significant contributions of separate property to the purchase of property during the marriage, then you may argue that it is not equitable to divide that property equally at the time of divorce. This is a matter of proof and the determination is in the sole discretion of the Judge.
HOW IS CUSTODY DETERMINED?
In today's world most people recognize that children need both a mother and a father who are active participants in their lives. The courts recognize the fact that children are entitled to a relationship with both their mother and their Father. Provided that both parents are fit and qualified most courts encourage a joint custody arrangement and co-parenting plan. If the parties are engaged in conflict and poor communication and negative behavior, a court will not and cannot grant joint custody.
If the parties are at war and refuse to cooperate, then the court must award custody based on the "best interest of the children,” which is a fact sensitive analysis. The most significant factor where both parents are competent and loving is the stability factor. The court will look to maintain the status quo living arrangement and will not flip flop children from one household to another, absent good cause. If both parents are joint caregivers and both play an active and meaningful role in their children's lives, joint custody is the most reasonable solution.
WHAT IS A LAW GUARDIAN AND WHEN ARE THEY APPOINTED?
A law guardian is an attorney appointed by the court to represent the children. A law guardian is paid regular attorney rates for their services. The parties generally pay pro rata for the cost of the law guardian. A law guardian will be appointed in your divorce case if custody is an issue. The law guardian will meet with the children. Their job is to represent to advocate the position of the children.
HOW IS SPOUSAL SUPPORT DETERMINED?
There is new legislation that the Governor has signed on September 25, 2015. The temporary maintenance provisions take effect thirty (30) days thereafter (October 25, 2015) and the remaining provisions take effect one hundred twenty (120) days after signing (January 23, 2016).
Under the new statute maintenance is determined by a formula based on the income of each spouse and whether or not the payor spouse is also paying Child Support. The term of maintenance is determined by the length of the marriage based on a recommended range of years.
If your divorce case was commenced prior to enactment of the new law then maintenance is based on the prior law which looks to the financial circumstances of the parties and the ability of each party to be self-supporting. The court will order spousal support based on various factors, including, but not limited to the following:
• the length of the marriage
• each spouse’s age and health status
• each spouse’s present and future earning capacity
• the need of one spouse to incur education or training expenses
• whether the spouse seeking maintenance is able to become self-supporting
• whether caring for children inhibited one spouse’s earning capacity
• equitable distribution of marital property, and
• the contributions that one spouse has made as a homemaker in order to help enhance the other spouse’s earning capacity.
Further, the duration of maintenance payments varies, depending on the circumstances. The longer parties are married, the longer the duration the maintenance payments will be.
HOW IS CHILD SUPPORT DETERMINED?
The first step in calculating child support is calculating the “combined parental income.” The amount of “income” attributed to each parent is derived by adding gross income as reported on the most recent tax return, and to the extent not included as gross income, investment income, imputed income and other “Income received” from 8 sources: 1. Workers compensation 2. Disability benefits 3. Unemployment insurance benefits 4. Social security benefits 5. Veterans benefits 6. Pension and retirement benefits 7. Fellowships and stipends 8. Annuity payments.
Child support is awarded to the residential custodial parent based on a formula which is set forth in the Child Support Standards Act. Simply stated, child support is calculated based on the parties' combined income after deducting FICA, maintenance, NYC taxes, unreimbursed business expenses, public assistance, SSI, and child support for children from a prior marriage or prior relationship. The court must apply 17% for one child, 25% for two children, 29% for three children, 31% for four children and no less than 35% for five or more children to the first $141,000.00 of combined income. The court may apply these percentages to the total combined income over $141,000 but it is not mandatory. Evidence of the family's standard of living during the marriage, children's needs, and the financial resources of both parents are significant factors of proof.
HOW CAN I MODIFY CHILD SUPPORT?
Child support may be modified, upward or downward, in three situations:
(1) Proof of a substantial change in circumstances since the entry of the judgment or order. The
court should consider the following in determining if there is a substantial change in circumstances: 1. Increased needs of children due to special activities, 2. Cost of living increase, 3. A loss of income by a parent or a substantial improvement of one parent, 4. The current and prior lifestyles of the kids.
(2) 15% change in income, and parties did not opt out of this as a ground for modification in an agreement
(3) 3 years passed since order was entered or last modified, and parties did not opt out of this as a ground to modify in their agreement.
To justify a downward modification, it must appear that the decline in income was not the result of the obligor parent's wrongful conduct and was not self-imposed, such as where he or she has chosen, without justification, not to work at all or not to engage in employment commensurate with his or her abilities and earning potential.
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