MATRIMONIAL AND FAMILY LAW

GROUNDS FOR DIVORCE


New York State now provides for a "no fault" divorce, effective as of October 12, 2010. A spouse may seek a divorce if the relationship between the parties has broken down irretrievably for at least six months.


Additional grounds for divorce under the existing law are as follows: (1) physical abandonment or constructive abandonment for one or more years; (2) cruel and inhuman treatment that renders cohabitation unsafe; (3) adultery, (4) confinement of a spouse in prison for a period of three or more consecutive years after the marriage; (5) living separate and apart pursuant to a judgment of separation for a period of one or more years; or (6) living separate and apart pursuant to a written separation agreement for a period of one or more years.


The new "no fault" divorce law is less restrictive than the traditional grounds for divorce and makes it easier and less stressful for a party seeking divorce. Once grounds for divorce are established, the remaining issues generally include: custody and visitation, child support and equitable distribution.


LEGAL SEPARATION


Often times married couples prefer to legally separate by Agreement, rather than divorce. This decision may be for reasons of a potential future reconciliation, the need to continue existing medical coverage, the creation of grounds for divorce or, for other personal reasons. Living separate and apart pursuant to such Separation Agreement for a period of one or more years, gives rise to grounds for divorce. After the one year period expires either party may sue for what is commonly known as conversion divorce: the terms of the Separation Agreement are converted to divorce, provided the moving party has substantially complied with the terms of the Agreement.


When parties do not agree to separate and one spouse chooses a separation rather than divorce, he or she may commence an action for separation. The grounds for separation are similar to those for divorce (cruel and inhuman treatment, abandonment, neglect or refusal to provide support, adultery, imprisonment). Likewise, a judgment of separation may be converted to a divorce after one or more years if the moving party has substantially complied with the terms of the Agreement.


CHILD CUSTODY & VISITATION


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 this fact and will sometimes encourage a joint custody arrangement. If the parties are at war and refuse to cooperate, then the court must award custody based on the "best interest of the children". 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.


CHILD SUPPORT


Child support is awarded to the 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 $130,000.00 of combined income. The court may apply these percentages to the total combined income over $130,000 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.


There may be future adjustments to child support upward or downward based on an unanticipated change of circumstances or, adjustment upward upon proof that the child support amount is insufficient to meet the children's needs. The party who becomes unemployed or experiences a reduction of income must make an immediate application for modification. Failure to pay child support may result in the filing of a violation petition. Once non-payment of child support is proven, the court may enter a money judgment, suspend the violator's drivers license or other state issued licenses. If it is proven that the violation was willful, the court may incarcerate the violator for non-payment of child support.


INTERIM COUNSEL FEES


Under New York State law, effective October 12, 2010, there "shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse."


POST-DIVORCE SPOUSAL SUPPORT OR MAINTENANCE (ALIMONY)


A court has the discretion to award maintenance to a spouse who is economically dependant. This award is often short term, for a period sufficient to allow the recipient time to become self-supporting. In the case where both parties are already self-supporting, maintenance will likely be denied. In the case of a long term marriage where one party has not been employed outside the home, many courts will award maintenance until the working spouse retires and/or the parties become eligible to collect social security benefits, pension benefits and other retirement assets.


EQUITABLE DISTRIBUTION OF ASSETS


The final issue, equitable distribution, mandates distribution of marital assets. That is, assets acquired by the parties during their marriage, whether from the husband's income or from the wife's income. Typically, such assets include the marital home, bank accounts, stocks, pensions, IRAs, 401K plans, a business, whether owned and operated by the husband or wife, and personal property such as furnishings, boats, cars, jewelry and the like. Separate property, such as an inheritance or personal injury settlement for pain and suffering, is not part of the marital pie. Disputed issues arise when separate property is converted or gifted to the non-titled spouse or co-mingled with marital property. Once such separate property is converted to marital property, it loses its distinction and is deemed to be marital property. It is then up to the court to determine what is "equitable," given all the facts and circumstances.


DISCLAIMER


The information contained on this website is not intended as legal advice to be used in the decision making process. This general information is intended as a starting ground for a spouse or parent who is in need of direction. Each case is unique and must be reviewed with an attorney. We highly suggest that every client consult with an attorney about the specifics of his or her case. While this firm will be making a continuing effort to update the information presented, we cannot warrant the accuracy of any of the information contained herein, nor should it be relied upon without a personal consultation. Please feel free to contact this office by either e-mail or by telephone to arrange for a personal consultation and review of your unique facts and claims. We will make every effort to minimize your anxiety and confusion during this difficult period.

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