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Divorce

A divorce can be an emotionally and financially stressful experience. At The Law Offices of Daniel A. Singer PLLC, we attempt to lessen that stress by providing personalized and cost-effective representation to individuals who are contemplating a divorce proceeding or who are already in the process of getting a divorce. Below are some factors which may be addressed as part of a divorce action, though it is by no means an exhaustive list.

Grounds for Divorce

Until recently, there was no such thing as a “no fault” divorce in New York. A party commencing a divorce action (known as the plaintiff) would have to allege specific grounds for a divorce other than “no fault” and- if there was a dispute as to such grounds- the plaintiff would need to prove such grounds at trial. These grounds, which continue to exist today, are the cruel and inhuman treatment of the plaintiff by the defendant; abandonment of the plaintiff by the defendant for a period of at least one (1) year; confinement of the defendant to prison for at least three consecutive years; adultery; and living apart pursuant to a separation agreement for at least one (1) year. In 2010, a new ground for divorce was added in New York- irretrievable breakdown of the marriage for at least six (6) months- conventionally referred to as “no fault” divorce. No judgment of divorce can be granted on this ground, however, unless the issues of equitable distribution of property, spousal support, child support, counsel fees, and custody and visitation have either been resolved by the parties or determined by the court.

Equitable Distribution of Marital Property

In general, marital property consists of all property accumulated during the course of the marriage by either or both spouses prior to the execution of a separation agreement or the commencement of a matrimonial action. Unless there is an agreement between the parties specifying otherwise, the fact that title to certain property is in the name of one spouse to the exclusion of the other has no bearing on the equitable distribution of marital property. Courts have taken a broad view as to what form of property constitutes marital property and have included in such definition items of economic worth such as, among many others, real estate; investments; bank accounts; professional license obtained by a spouse during the course of a marriage; and interests in corporations, partnerships, and other businesses. In determining how marital property should be equitably distributed between the parties, the court examines numerous factors including, by mere example, the length of the marriage and the age and health of the parties; the income and property of each party at the time of the marriage and at the commencement of the action; the need of the custodial parent to own or occupy the marital residence and to use or own its household effects; and the probable future financial circumstances of each party.

Maintenance

Maintenance involves the rendering of payments from the more “monied” spouse to the less “monied” spouse stemming from a matrimonial action. Temporary maintenance involves the rendering of support payments during the course of a matrimonial action whereas post-divorce maintenance involves the rendering of payments following the conclusion of such an action. The amount of maintenance to be paid is largely determined in accordance with a statutory formula though courts are permitted to deviate from such formula. Although the statutory authority provides suggestions as to the duration of maintenance, such suggestions are not binding and the length of time for which maintenance is paid is left to the discretion of the court. Maintenance payments cease upon the death of the payee or payor and/or upon the marriage of the payee.

Custody and Visitation

In determining custodial and visitation arrangements, courts look at what is in the best interest of the child. In determining what constitutes the best interests of the child, courts look at the totality of the circumstances and no one factor is determinative. A distinction is often made between “physical custody” and “legal custody”. Physical custody is the right of a parent to reside with his or her child. Legal custody is the right of a parent to make decisions for his or her child including, by example, decisions regarding education, health care, and religion. If the parties cannot determine custodial arrangements between themselves then they must be determined by the court. There are numerous possibilities with respect to custodial arrangements. For example, the parties may decide or a court may determine that one party has both physical and legal custody of the child whereas the other parent has visitation with the child according to a determined schedule. In contrast, the parties may decide or a court may determine that the parents share physical custody of the child but that one parent is given decision-making power. The parties might also decide to exercise joint legal custody where decision-making power is shared equally. Occasionally, the parties may determine or the court may decide to divide decision-making into spheres with one parent, for example, making decisions regarding education and the other parent deciding medical issues.

Child Support

Child support is payable by the non-custodial parent to the custodial parent. It is the custodial parent that has standing to seek child support. A distinction is made between basic child support payments, which denotes reoccurring scheduled payment for ordinary child-rearing expenses, and additional payments (often referred to as “add ons”) for medical, educational, and child care costs. A statutory formula is used to determine the amount of child support paid by the non-custodial parent to the custodial parent by taking into account the combined income of both parents. Courts are required to apply the statutory formula up to a certain baseline amount. As of April 2016, such baseline amount is $143,000.00 per annum. A court may deviate from the statutory formula in making its determination but, in order to so, it must examine certain factors including, by mere example, the financial resources of the non-custodial parent and the custodial parent and the child; the physical and emotional health of the child and his or her special needs or aptitudes; the educational needs of either parent; and, if the non-custodial parent is supporting other children, the needs of those children. A non-custodial parent is obligated to make child support payments until the child reaches the age of 21. Child support payments may terminate prior to the child reaching the age of 21 if he or she is “emancipated”. Emancipation occurs when the child obtains gainful employment such that he can support his or herself, joins the military, or marries.

Uncontested versus Contested Divorce

A party commences an action for divorce by filing a complaint in the Supreme Court of the State of New York, County of New York. A divorce is said to be uncontested when there is no disagreement between the parties as to any of the financial or other issues related to the divorce (such as child support, maintenance, and/or custody and visitation) and where the other spouse either agrees to the divorce or does not respond to the complaint or otherwise appear in the divorce action. If there is a disagreement regarding any of the ancillary issues relating to the divorce and/or if the other spouse does not agree with the divorce and appears in the divorce action to voice such disagreement, the divorce is said to be “contested”. Sometimes a divorce will start by being uncontested but will become contested as issues arise between the parties. It is important to consult with counsel prior to commencing an action for divorce. Even in cases of an uncontested divorce, it is critical that each spouse consults with separate counsel to ensure that they are receiving independent advice.

Please contact us today should you wish to discuss our prospective representation of you in a divorce.

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