The term “Divorce” is the term used to describe the dissolution of, or the breaking apart of a marriage. Divorce is final and permanent and can only be granted by a judge of the Supreme Court. The most common ground for divorce in New York State is irreconcilable differences, which permits people to divorce for any reason or no reason at all. All the plaintiff must do is to claim that the marriage has been irretrievable broken for the last six months. There is no defense and the court will automatically grant an uncontested divorce. This means that the parties are unable to work through there issues in order to save their marriage. The process does take time and it should not be assumed that a divorce will happen quickly. All possible outcomes should be considered with a clear head. Rash decisions are far too often made based on clouded emotions and many spouses are unable to amicably make such decisions without the help of a third party. It’s important to discuss each aspect of the divorce proceeding with an attorney prior to taking any additional steps that might harm you financially or otherwise.
Whether your marriage was for one year or thirty years, a lot is at stake in terms of relationships and emotions, and there are many moving pieces. While it is a fact that neither party will walk away completely satisfied, it is important to take the time to ensure that you are accounting for and resolving all of the issues concerning the marital relationship, such as equitable distribution (property, liability and asset division), child custody and parenting time, child support and maintenance (previously known as alimony).
In some cases, if both parties are civil and willing and able to cooperate with each other in making these tough decisions together, they may be able to take the more cost-effective route through an “Uncontested Divorce”. This route allows the couple to take charge of their divorce proceeding by tailoring their future as it would best fit their lifestyle. This method also allows couples to avoid court intervention, thereby cutting down on the cost of litigation. Even through the process of an Uncontested Divorce, it is imperative that each party know that they have the right to and are encouraged to obtain legal representation in order to protect their interests and to have their legal rights and obligations explained to them.
Divorce is not your only option when it comes to dissolving your marriage.
A spouse may move to seek an Annulment, which is the legal act of declaring a marriage null and void due specific circumstances. While not as common, grounds for an Annulment are:
Mental Incapacity - The lack of mental capacity to make decisions, often stemming from mental illness or severe intoxication.
Duress - Being threatened or forced into marriage.
Fraud - being tricked, misled or the concealment of important facts prior to marriage, such that had you known about certain facts or circumstances prior, you would not have entered into the marriage.
Bigamy - an individual who is already married marries again.
This may be a good option for you and your spouse if you both are not sold on the idea of divorce yet and you believe there is still hope to repair your marriage or you have other reasons to hold off on a divorce, such as waiting until children are older, or to allow time to get your financial affairs in order,because of religious beliefs, a separation may be an option worth exploring. There are of course several other personal reasons a couple may wish to seek a Legal Separation over a Divorce and therefore, it is wise to speak to an Attorney to discuss your options. A court order officially grants a legal separation; however, this means you are still legally married. There are no timelines for which a separation may last, and you and your spouse can set specific parameters as to how long you are separated before filing for a divorce. Some couples decide that they would prefer to remain separated indefinitely, rather than going through with a divorce.
The major components of the divorce are described in detail below.
Equitable Distribution is the division of marital properties that were obtained during the marriage. Examples of such properties include real estates, bank accounts (checking and savings), pensions, retirement accounts, profit sharing plans, business interests, tangible items (i.e. jewelry, collectibles, automobiles, furniture, etcetera…), and investments. Unlike marital property, separate properties are not subject to equitable distribution because it is solely in the legal possession of the spouse who received the property separate and apart from any marital involvement. Assets that are considered separate are: inheritance, property owned prior to the marriage, and compensation for personal injury.
The law of property distribution is straightforward and extraordinarily complex at the same time because of the deviations from the general rule caused by the fact that our lives are full of twists and turns which create exceptions to this rule.
The general rule is that all property acquired during a marriage is to be divided equitably or fifty-fifty (50/50), however, the fact is that equitable is not always equal because there are many factors to consider such as the income and property of each party at the time of the marriage (prior to being married- separate property) and at the time of the commencement of the divorce action, and:
The duration of marriage and the age and health of the parties.
The need of a custodial spouse to occupy or own the marital residence.
The direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other party.
Any equitable claim to an enhanced value of any property that was separate property.
Child Custody is a commonly litigated matter. Whether it comes to a divorce litigation where child(ren) are involved, or it’s a matter of the differences of opinions of a non-married couple with child(ren), the process is HIGHLY emotional when litigating for custody of the child(ren). A court of the State of New York can only grant an Order of Custody if a child is under the age of 18 years. A Custody Order can assign legal Custody, joint legal Custody, sole Custody, residential Custody also known as physical Custody of the child(ren) to a parent or specified legal guardian. The court will determine several factors before issuing anyone custody and bases their decisions on the best interests of the child(ren). An Order of custody can only be handed down by the court in either a Family court Custody proceeding or in the Supreme court as part of a divorce settlement.
Legal Custody – When awarded, the parent or guardian has the right to make all decisions regarding the child, such as education, religion and medical decisions. The parent or guardian with Legal Custody is responsible and in charge of the child(ren) in all aspects and the child(ren’s) upbringing.
Joint Legal Custody – When awarded, gives both parents or guardians an equal say in the upbringing, medical, religious and educational decisions for the child(ren). Both parents or guardians must make all decisions regarding the child(ren) together.
Sole Custody - When awarded, gives one parent or guardian the right to make major decisions for the child(ren).
Physical Custody - Also known as Residential Custody - When awarded, gives that parent or guardian the responsibilities of providing that child with physical care and supervision.
Joint Physical Custody - When awarded, the child(ren) live with the parents or guardians for a shared (sometimes) 50/50 amount of time.
Sole Physical Custody - When awarded, the child(ren) live with this parent or guardian more than 50% of the time. This parent or guardian is called the custodial parent or guardian and the other, noncustodial parent or guardian will be awarded visitation/parenting time with the child(ren).
In arriving at a determination as to which parent will have custody, the key question is what is in the child's best interest. As our society has become more complex, this question is not so easy to answer. Factors such as both parents working full time, the ability of one parent as opposed to the other to foster a relationship between the child(ren) and the other parent are factors.
And there is no one factor that determines custody, but there are multiple factors which are considered included but not limited to:
Who has been the primary caretaker and who is better suited in the future to be the primary caretaker.
The parent's ability to meet the child's physical and emotional development needs.
The quality of the parent-child relationship.
The child's preference.
The age of the child(ren)
The quality of the home environment.
Maintaining stability for the child(ren).
Interference with the non-custodial parent's time.
Parents always have the option to design a custody and visitation agreement between each other or if this is not an option, a Judge will decide custody based upon factors and they will further enter an Order of Custody and or Visitation/Parenting Time which the parents must uphold and follow. If, determined by the court that one parent is unfit to have custody of a child (i.e. neglecting or abusing the child; alcohol or drug use), then the court may grant the other parent sole custody.
There is also the matter of also known as which is the arrangement or Court Order which outlines the time that shall be spent with each parent, specifically in hours and days. In the State of New York, the courts will take into consideration, the best interests of the child(ren). This includes making sure the child(ren) are given the opportunity to build and carry on meaningful relationships with each parent, regardless of how their parents may feel towards one another. An exception to gaining visitation or parenting time, is if there is good cause shown that one parent or the other should not spend time with the child(ren). Some examples a Judge may not issue visitation would be if a parent is not suited to properly take care of the child(ren) for reasons including but not limited to such having an untreated mental illness, an uncontrolled drug or alcohol addition, sexual, physical or mental abuse, etc., wherein visitation or parenting time with the child(ren) could prove to be dangerous or otherwise not in the best interest of the child(ren). An Order of visitation or parenting time can only be handed down by the court in either a Family court or in the Supreme as part of a divorce matter.
Maintenance or Spousal Support
Maintenance/Spousal Support was previously known as “alimony”. Maintenance or spousal support is the sum of money one spouse will pay to the other for a designated length of time. The purpose of Spousal Support or Maintenance is to provide the non monied spouse with the opportunity to become economically independent. Maintenance can be temporary during the pendency of litigation and final as incorporated into your Judgement of Divorce. Maintenance is determined by New York State Statue. Both the Supreme Court, by way of Domestic Relations Law 236B(6), 5-a and the Family Court, by way of the Family Court Act 412, have jurisdiction of handling matters of Maintenance/Spousal Support. The Statute uses a complex multi-step formula plus the law provides that the court consider the following factors when awarding maintenance:
The income of the parties and the property distributed in the divorce.
The length of the marriage.
The age and health of the parties.
The present and future earning capacity of the parties.
The need for one party to incur education or training expenses.
The existence and duration of a premarital household or pre-divorce separation household.
The actions of one party that inhibited the other party's capacity or ability to obtain meaningful employment, including acts of domestic violence.
The ability of the parties seeking maintenance to become self-supporting and the amount of time and training that would be needed.
The presence of children, stepchildren, disabled adult children or stepchildren and elderly parents as they may inhibit the ability of a spouse to work.
The reduced or lost lifetime earning capacity of a spouse.
The inability of a party to obtain meaningful employment because of age or absence from the work force.
The need to pay for exceptional additional expenses for the children involving school, daycare and medical treatment.
The tax consequences to each party.
The equitable distribution of the marital property.
The contribution of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career potential of the other spouse.
Wasteful dissipation of marital property.
The transfer of a marital asset in contemplation of divorce.
The loss of health insurance as a result of the divorce and the future availability of that health insurance to the party.
And lastly, any other factor that the court considers just and proper.
Child Support is the financial support of the parties’ minor child(ren) provided by the parents. There is a formula which calculates the child support amount based on each parties’ annual income and the number of children the parties have in common. Based on New York State statue, the percentages of both parents incomes, depending upon the number of children the parties have are as follows: one (1) child - 17%; two (2) children - 25%; three (3) children – 29%; four or more (4+) children - 33%. The party who has custody of the children will receive child support from the other party (even if that custodial parent’s income exceeds the noncustodial parent’s income.) It may be a bit tricky to calculate child support and it takes in a number of additional factors that may not be apparent to you (some driven by the facts and circumstances regarding the parents and other facts regarding the children); therefore, it is strongly recommended to speak with an attorney prior to agreeing to anything that may financially affect you and your family. For example, if a company car is used for work, and can also be available for personal use, the personal use portion of the job benefit may be added to the income.
New York State also considers support to include healthcare for the child(ren), provided by whichever parent can better afford or secure the insurance. In some cases, both parents provide the child(ren) with health insurance. Day care must also be paid for, and this is done on a pro rata basis, that is, if you earn 60% of the available income for child support, then 60% of the total child care bill would likely be paid by that parent.
Child support is paid until the child reaches the age of 21 or is otherwise considered emancipated. In the case of a child under the age of 21, emancipation can occur if the child marries or joins the military. At which time, neither parent has a legal obligation to financially support the child(ren) or provide them with health insurance. The noncustodial parent is required to pay child support. An Order of support can only be granted by the court in either a Family court support case or in the Supreme court as part of a divorce.
There are numerous factors to consider when it comes to child support. The above situations and examples are just a few unique factors to be considered. It is also important to understand that each situation will be different, which makes it crucial for you to be honest and provide your Attorney with as much information as accurately as possible.