No-Fault, Cruel and inhuman treatment, abandonment, imprisonment for more than three years, adultery and separation agreement.
No-Fault divorce is a divorce where there is irretrievable breakdown of the marital relationship for six (6) months.
Cruel and inhuman treatment occurs when the conduct of the spouse so endangers the physical or mental well-being of the spouse as to render it unsafe or improper for the parties to continue to cohabit as husband and wife. Physical violence is not required. There can be verbal abuse/harassment, falsely accusing a spouse of an affair, telling the spouse that he or she no longer loves him or her or continuous intoxication. The major factor in determining whether conduct by a spouse is sufficiently cruel and inhuman is the length of the marriage. What might be sufficient in a short marriage such as arguing or name calling, may not be sufficient in a longer term marriage of ten or more years.
Abandonment occurs where the spouse voluntarily and without consent or justification leaves the other spouse with the intent of not returning and resuming living together and the abandonment continues for one or more years. A defense to abandonment is where a spouse justifiably departs such as to prevent being beaten or where the other party consents to the spouse leaving.
Imprisonment occurs if a spouse is incarcerated for a period of three or more consecutive years after the marriage. Incarceration also includes confinement in a state hospital after the determination that the spouse is not competent to stand trial.
Adultery. Defenses to an adultery claim are forgiving the unfaithful spouse or if both spouse are guilty of adultery.
Separation agreement or no-fault divorce where the parties live separate and apart pursuant to a separation agreement for a period of one year or more and the Plaintiff has substantially complied with its provisions. Separation agreements outline the parties’ rights and obligations during the period of separation, including custody, visitation, child support, maintenance, debts and distribution of property acquired during the course of the marriage.
An Annulment is available where a party was underage at the time of marriage, or there was fraud, or there was the intentional misrepresentation of a material fact which substantially affects the marriage, e.g. a promise to have children when the spouse has no intention of having children or a promise to convert to the other spouse’s religion or to raise the children in a particular religion.
Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case - the divorce itself, the property division, child custody, spousal support, etc. Uncontested divorces fall into two categories - (1) Consent Divorces - the parties agree on all major issues; and (2) Default causes - where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Settlement Agreement you can make your divorce an uncontested divorce.
Whatever ground, or reasons you rely on to file for divorce, it will have to be proved. The evidence necessary to prove a certain ground is established in Court. If your spouse contests the action for divorce, there must be a trial or hearing at which at least one witness (it may be you) will have to testify about your allegations. If the Supreme Court of the State of New York finds your testimony to be more believable than the testimony of your spouse, you will have succeeded in proving your case and the court will grant you a Judgment of Divorce.
However, today with No-Fault grounds for divorce, proving grounds for divorce has been simplified, and needs minimum proof of the breakdown of the relationship.
A simple uncontested divorce can be processed by the Supreme Court of the State of New York within 60 days. A complex contested divorce action, involving contested custody, support. valuation and property issues can take over a year.
New York is an equitable distribution state. Equitable distribution is a legal doctrine utilized by divorce courts to determine the distribution of a marital estate’s assets and liabilities among the parties to the marriage. The equitable distribution doctrine requires courts to fairly (as opposed to equally) distribute the marital estate’s assets and liabilities and provides the court with guidelines so as to assist them in their determination. Some factors the courts are obliged to consider are:
In New York State, as in most states, child support is determined by a formula. The formula depends on the number of children living with you under age 21, your income as well as your spouse's income, the amount of Social Security and Medicare tax you pay and local city tax paid if you live in New York City or Yonkers. The formula is fixed for the first $141,000 of your and your spouse's income, and then is subject to judicial discretion for addition amounts. Child support is equal to the following percentages of gross income as adjusted above: 17% for one child, 25% for two children, 29% for three children, and up to 35% for five or more children. I generally project several child support scenarios as part of the divorce financial planning process.
Parents have an obligation to provide support until the child is emancipated. Emancipation occurs when the child:
You can bring a proceeding in the Supreme Court of the State of New York or the Family Court of the State of New York for a support order. If your separation/settlement agreement or divorce judgment contains a direction to your spouse to pay maintenance or child support you can bring an enforcement proceeding in the Supreme Court of the State of New York or Family Court to enforce your legal rights. The Supreme Court of the State of New York or the Family Court of the State of New York can grant you a money judgment against your spouse, direct him/her to put up security for future payments, appoint a receiver of his/her property or hold him/her in contempt of court.
You can also sue your spouse for breach of your separation/settlement contract. You may also obtain an Income Deduction Order from the Supreme Court or the Family Court, to have your spouse’s employer pay you directly for the child support from the spouse’s pay.
Note: New York calls it spousal support and maintenance
While child support is determined by statute, the Court determines the amount of alimony you will receive. The New York State Domestic Relations Law includes such guidelines as the length of your marriage, your marital lifestyle, your income and the ability of your spouse to pay, your age and heath, the likelihood that you will obtain gainful employment, as well as a catchall…any factors that the Court feels are relevant. Keep in mind that no two cases are the same. I recommend that you speak with an experienced matrimonial attorney who practices in your locality to understand what a typical maintenance award would be for your situation.
There are two courts in New York with jurisdiction to issue a custody order — the state Supreme Court and the Family Court. While a Supreme Court divorce case will often include custody as an issue to be resolved, a custody proceeding can also be commenced as a separate proceeding in either the Supreme Court or the Family Court. A custody proceeding begins with a petition and can be served with a writ of habeas corpus, notice of petition or order to show cause, depending on the choice of court and the circumstances. We will advise you on the best method to proceed while working to fashion the best presentation of your case in the petition.
Perhaps more than in any other area of matrimonial and family law, there is confusion over custody terminology. Having custody of a child, and having "sole" custody of a child is the same thing. It means that the child resides with you and you are responsible for making all important decisions in that child’s life. If the child resides with you but you share the responsibility of making decisions with the other parent, then you have residential custody but share joint custody with the other parent. The term "joint" refers to decision making authority only. In other words, even the visitation parent can be a "joint custodial" parent because that person is jointly responsible for making important decisions (i.e., religious training, non-emergency medical care, etc.). True joint or "Shared custody" means the child resides with each parent a substantial amount of time (e.g., one week on, one week off), while "split custody" means one child resides with one parent while the other child resides with the other parent.
No. There is no legal presumption against a father getting custody. Primary physical custody is based upon the best interests of the child. Although judges typically direct primary physical
custody to the parent that has been the primary care-giver, there are many factors to consider, including which the parent will best promote the child’s relationship with the other parent.
Where both parents are fit and they each want custody, the court will utilize a “best interests of the child” standard. “Best interests” are difficult to quantify. However, in reaching that determination, the courts are required to consider numerous factors. These include the relative fitness of the parents, the emotional bond of the parents for the child, which parent has been the primary caregiver, the stability of the child’s current residence, the ability of each parent to provide for the child's intellectual and emotional development, the child’s preference, the existence of siblings, and the effect that an award of custody to one parent might have on the child's relationship with the other parent.
There are two ways to become legally separated from your spouse:
(1) You and your spouse enter into a Separation Agreement. The agreement must contain certain language and be signed and acknowledged in a certain way in order to qualify as a Separation Agreement. You should not try to prepare your own Separation Agreement. The agreement must be carefully drafted so that it accurately reflects your intentions and is enforceable in the future. (2) You obtain a Judgment of Separation. An action for separation proceeds in very much the same way as an action for divorce.
As in divorce, New York law requires that you have specific grounds to obtain a judgment of separation. The grounds for separation are the same as for a divorce.
A Separation Agreement is a contract, and it is enforceable in court just like any other contract. Often, a money judgment will be sought and entered against your spouse. At your consultation, we will determine the best way to proceed depending on which terms of the agreement your spouse has failed to obey.
What are the reasons to seek a legal separation instead of a divorce?
Many people want a legal separation because they have hopes of reconciliation and do not want to end their marriage. Others enter into a separation agreement so that one spouse can remain covered under the other spouse’s health insurance policy. Since many medical plans allow coverage for spouses who remain married but are legally separated, in some cases using a legal separation instead of a divorce can save money by keeping both spouses on one medical plan.
This is a difficult question. No two marriages are exactly the same. The assets of the parties, their living circumstances, the real estate owned, the businesses owned, the number of children, and the long and short-term issues involving the parties affect the determination as to whether mediation or litigation would be the best way to proceed. We work with our clients to come to an understanding of our client’s needs. We work out a road map as to which is the best route for our client to take.
Even if mediation is chosen, each party should consult with his or her own attorney throughout the process.