Divorce

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Provided by Juliana LoBiondo, Esq

What is a “Divorce”?

A divorce is a legal judgment which dissolves a marriage between two parties.

Does New York State permit a divorce on the grounds of “irreconcilable differences”?

On October 12, 2010, New York State established “irretrievable breakdown of the marriage” as a ground for divorce.   This is similar to what most people commonly think of as “irreconcilable differences.”  “Grounds” for divorce (cruel and inhuman treatment, abandonment, adultery, etc.) no longer have to be established.  If the marriage has broken down irretrievably for a period of at least six (6) months, you can sue for divorce.

How do I start a divorce action?

A divorce action is commenced by the filing of a Summons and Complaint in the Office of a proper County Clerk. The Complaint must allege “grounds” for divorce, which may now be Irreitrievable Breakdown of the Marriage (see above).   For more information on divorce complaints, “uncontested” divorces, and the filing fees, you may visit New York State’s website, at www.courts.state.ny.us. For more specific information about your own circumstances, call this office for a free consultation.

I believe I have an uncontested divorce, will this cost me less money? 

True uncontested divorces are becoming more of the norm and this office can prepare uncontested divorce papers for legal fees starting at $500.00.  A true uncontested divorce means that you already have an executed Separation Agreement, which simply needs to be converted to a Judgment of Divorce, and the other party consents completely.  However, be aware that the County Clerk also has fees which are required to be paid separately.  These include an Index number fee of $210.00, an RJI fee of $95.00, and a Motion Filing Fee of $45.00, among others.  If you don’t have a fully executed Separation Agreement, but you and your spouse agree on all issues, including custody, child support, maintenance, and distribution of assets and liabilities, then you are on your way to a more amicable and simple divorce.  The more you and your spouse agree to ahead of time, the less you will spend on legal fees.  However, many people can’t agree on these items and that’s why the assistance of an attorney is needed.  There are still ways to keep your legal fees down, such as setting up 4-way conferences with the other side, instead of going into court immediately.  There is an old expression:  “Why send your lawyer’s kids to college, when you can send your own kids to college?”

What assets am I entitled to after divorce?

New York State adheres to the legal principle of “equitable distribution” of marital assets and marital liabilities. New York State recognizes a distinction between “separate property” and “marital property.”

The basic provisions of divorce in New York State are governed by a statute known as the “Domestic Relations Law.” New York Domestic Relations Law Section 236B(1)(c) can be summarized to provide that “marital property” consists of property acquired by either or both spouses during the marriage and prior to the parties executing a valid “separation agreement” or commencing a valid divorce action.

“Marital property” does not include “separate property.” New York Domestic Relations Law Section 236B(1)(d) can be summarized to provide that “separate property” consists of property acquired by one spouse prior to the marriage; or by gift from someone other than the other spouse; or as compensation for personal injuries; or property acquired in exchange for or the increase in the value of separate property (with certain exceptions) or property described as “separate property” by valid written agreement.

The Domestic Relations Law provides that both marital assets and marital liabilities (mortgages, consumer debt, etc.) will be equitably distributed.

For questions about the meaning of marital property, separate property and/or equitable distribution, you should contact an attorney licensed to practice in New York State.

Can a professional license or Degree be equitably distributed?

Yes. In New York State, a professional license, such as a medical license or law license, which was acquired during the marriage may be equitably distributed. Similarly, an “attainment,” such as a law degree, medical degree or certain other degrees, which was acquired during the marriage, may be equitably distributed. This is a complex issue. Not all attorneys have experience in this arena and it is important to contact an attorney knowledgeable on these issues.

How is custody and visitation determined?

This is a very important journey for both the parents and the children. In the best case scenario, the parents are able to discuss how custody and visitation will be arranged by themselves, or with the assistance of a mediator, or their attorneys. Any final determination should be committed to writing with the assistance of an attorney. For more information on the use of mediation to settle custody matters you may go to New York State’s website at www.nysdra.org.

However, this is not always possible or realistic. If not, custody and visitation may be determined in the Family Court or the Supreme Court. If the parties are not married, they must proceed through the Family Court. If the parties are married, custody and visitation may be determined through a divorce proceeding in the Supreme Court. For more information on the Family Court system and to view the official New York State custody summons and petition, you may go to www.courts.state.ny.us.

For more information on custody and visitation in your circumstances, you should contact an attorney licensed to practice law in the State of New York for a consultation. If you cannot afford a consultation, you should contact your local branch of Legal Services, or your local Family Court to explore the different ways you may qualify for counsel at a reduced fee or no fee. A directory for all Family Court addresses and phone numbers throughout New York State can be found at www.courts.state.ny.us.

What is “maintenance”?

“Maintenance” is what is referred to under the Internal Revenue Code as “alimony” (a word some people are more familiar with). New York’s Domestic Relations Law Section 236B(6) can be summarized as defining “maintenance” as a sum of money the court may order one spouse to pay to the other, on a periodic basis, as justice requires, considering the parties’ standard of living during the marriage, and whether the spouse receiving maintenance lacks sufficient property/income to provide for their reasonable needs and whether the other party has sufficient property/income to provide for the other spouse’s reasonable needs. There are eleven factors which the court must consider in determining “maintenance.”

Maintenance is not the same as child support. Maintenance is a complex issue. Where higher incomes are involved, there are many important financial considerations. To protect your rights, it is important to contact an attorney knowledgeable on this issue.

What’s this I hear about “temporary maintenance” being automatic?

In October of 2010, the New York State Legislature implemented a change to the law which gave the courts a formula for calculation of temporary maintenance.  “Temporary” refers to the period of time from the filing of a Summons and Complaint for Divorce until the entry of the Judgment of Divorce.  It was a major change in the law and has an impact on those entitled to receive temporary maintenance and those who will be paying it.  However, it is not “automatic” in the sense that upon filing for divorce one automatically receives it or pays it.  One spouse must make application for it.  For more information on whether this statute would apply to you, contact the office for a free consultation.

What is “child support”?

In New York State, a custodial parent is entitled to “child support” from the non-custodial parent, pursuant to the Child Support Standards Act. To view a Family Court official summons and petition for child support and receive more information on child support, you may visit New York State’s official website at www.courts.state.ny.us. More information can also be found at the website for the New York State Bar Association at www.nysba.org. A copy of the Child Support Standards Act Chart, can accessed at New York State’s Office of Temporary and Disability Assistance website, found at www.newyorkchildsupport.com.

In sum, child support consists of “basic child support,” as well as “add-ons”, which include a share of the children’s unreimbursed medical expenses, certain child care expenses and, in some but not all instances, educational expenses. Health insurance is also part of a child support order. Child support is tied to the parties’ incomes and based upon a formula, which can be found at www.newyorkchildsupport.com.

This issue can be straightforward or complex. It is particularly complex where one party’s “income” is not clear, either because they own their own business or derive income from non-traditional sources. The issues become particularly complex for high net worth individuals where there are many issues that are not addressed by the Child Support Standards Act. For instance, tax issues and non-traditional income sources such as “stock options” are not addressed. By way of example, although the exercise of “stock options” will appear on a party’s W-2, it is not clear whether that is, in all instances, “income” for the purposes of calculating child support. If the issue of “child support” in your matter is complex, it is important to contact an attorney knowledgeable on these issues.