FAQ's for divorce and family law matters
I have provided FAQ's for divorce and family law matters with simple and concise answers for the most pressing issues.
What are the grounds for filing for divorce in New York State?There are multiple grounds that can be alleged in New York in a divorce action. However, in October 2012, New York State became the last state to finally enact a "no-fault" divorce ground.
Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground (No. 7 below), although all of the other remaining grounds are still available.
The grounds for divorce in New York pursuant to DRL Section 170 are: (1) cruel and inhuman treatment; (2) the abandonment of the Plaintiff by the Defendant for a period of one or more years; (3) the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage; (4) the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage; (5) living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment; (6) living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement; (7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.
No. 7 above is the ground for divorce that is closest to a no-fault ground in New York. What this means, essentially, is a divorce will be granted on that ground after the parties or the court have resolved the property, custody, child support, and spousal support issues and the attorney and expert-witness fees. This ground typically is not contested. When it is, the burden of proof is easier to meet than for the other grounds for divorce in New York. The irretrievable-breakdown ground can be met by a sworn statement, while the other grounds require that the Plaintiff provide evidence to prove the specific allegation before a final determination will be made on the other issues of the divorce.
Who will get custody of our child?If you and your spouse cannot reach an agreement on the custodial arrangement for your child, then custody can be determined through Family Court or as part of a divorce action. The court will make its custody decision by determining what specific terms are in the best interests of the child. The court will examine how each parent meets the child's mental, emotional, psychological, medical, educational, and nutritional needs. Each case is decided based on its own unique set of facts and circumstances. Factors taken into consideration by the court include the following: the amount of time each parent spends with the child; attendance at parent-teacher conferences and doctor appointments; homework completion; bedtime routine; bathing; feeding; meal preparation; and emotional closeness. In a majority of custody cases, there will be some type of shared decision making and physical custody.
Can I modify custody?
You can modify a custody order in New York if you can establish that there has been a substantial change in circumstances since the last custody order was made. What is considered substantial is up to the court to decide. If you can show sufficient evidence of a substantial change in circumstances, then the court will review the new situation and make a modified custody order, applying the same standard as before: the best interests of the child.
How is child support determined?In New York State, child support is determined by the Child Support Standards Act. The law sets forth formulas and factors the court may consider in determining support. To analyze your particular situation, go to childsupport.ny.gov and/or nycourts.gov.
Generally, the parent who has the majority of the custodial time is legally defined as the "custodial parent" and the person entitled to receive child support from the other parent. In New York, whoever has the majority of overnights with the child will be the primary custodial parent for child support purposes. If there is a shared custodial schedule, and the child spends 50 percent of his or her time in each household, the court will analyze each parent's income. The parent with the greater income will be deemed the "non-custodial parent" and be ordered to pay support to the lower-income parent or "custodial parent." Under this scenario, the court has the discretion to adjust child support to an amount less than the full application of the law due to the shared parenting time schedule.
At what age are children no longer subject to support and custody judgments?
In custody matters, there is no legal authority to make a custody order once the child reaches the age of 18 years. In child support matters, parents are responsible to support their child until the age of 21 years. Child support can be extended beyond the age of 21 by agreement. For example, parents may choose to support a child until he or she reaches age 22 or completes a four-year college degree, or longer. In addition, a health insurance plan may allow a parent to keep their child insured until the age of 26. Terms pertaining to this issue can be negotiated and agreed to by the parties for the benefit of the child.
In New York State, is marital property split 50-50 in a divorce?New York is an equitable distribution state. Equitable does not mean equal or a 50-50 split. Generally, the law provides that marital property should be divided equitably or fairly. Typically, a divorce will involve the division of equity in real property, retirement accounts, bank accounts, vehicles, and household contents. The exact division will be different for each case, taking into consideration the parties' goals and circumstances. Marital debt also must be equitably divided. In most cases, the interplay between the division of property and debt drives the resolution. An agreement reached between spouses is usually preferable over a decision by a judge after trial. If spouses are able to work together, they are usually more satisfied with the terms, which can incorporate details that a judge will not.