Divorce and Family Law FAQ

My Spouse and I Just Don't Get Along.  Can We Get a Divorce?

Unfortunately, New York State law does not permit divorce based upon incompatibility or irreconcilable differences. New York remains a "fault" state. What this means is that you must still prove that there are grounds for the divorce. Common grounds in New York are cruel and inhuman treatment and abandonment. There are other less utilized grounds as well. The practical effect of the grounds requirement is that sometimes, one party will contest the grounds for divorce in an effort to obtain a more advantageous property settlement. New York does have one no fault ground, which is living apart for one year after signing a separation agreement. Most people however, do not wish to wait the required one year period.

Can I represent myself ?

Under certain circumstances, you can represent yourself in a divorce action. If there are no significant assets and both parties agree, it is possible for a self-represented party (pro se) to obtain a divorce. New York State has official forms for an uncontested divorce forms located at www.nycourts.gov. Be aware however, that if the parties do not agree, going pro se is not for the faint of heart.

What about divorce mediation ?

Divorce mediation can be a viable alternative to the divorce process, which is time consuming, difficult and expensive. Mediation requires a commitment from both sides to make the process work. In addition, the choice of mediator can be problematic. Generally, the mediator should have knowledge of divorce law and should have some negotiation training. Often, a social worker or psychologist can be helpful. The goal of the mediation process should be to arrive at an agreement which can be incorporated into a separation agreement.   Our office can provide mediation services upon request.

My spouse and I agree on everything.  What's the best way to get divorced ?

The far and away best way to settle a matrimonial action is by signing a separation agreement. This comprehensive agreement is prepared by lawyers and covers all aspects of the marital relationship including custody, child support, alimony (now called maintenance) and property distribution. Once a separation agreement is signed, the parties can proceed to an immediate divorce on fault grounds, or can wait one year and obtain a divorce on a no fault basis.

What if the breakup is all his/her fault ?

Generally, fault is not a consideration in distributing the marital assets. So the fact that one party is responsible for the breakup of the marriage is generally considered irrelevant. Put another way, the party that caused the breakup of the marriage is not penalized financially in the distribution of property, except under extremely unusual circumstances.

Everything is in my spouse's name.  Can I be awarded any property ?

For the purposes of distributing marital property, title is irrelevant. In other words, if the property is acquired during the marriage, the fact that it is in one party's name is not considered in determining who ultimately is awarded the property. A common example is where an automobile is in the husband's name only. The court may award the automobile to the wife despite the fact that title is in the husband's name.

What is this going to cost ?

The cost of a contested divorce can be substantial. Most attorneys charge hourly rates in the range of $250 to $450 per hour, and require an initial up front retainer at the beginning of the case. For these reasons, litigation over small issues in not beneficial from an economic point of view. When one spouse earns substantially more than the other, the courts are increasingly likely to award attorney's fees to the spouse with the lesser income. Thus, a party may have not only his or her own attorneys fees to pay, but the fees of the spouse's attorney as well.

How long will this take ?

Contested divorce actions can take years to come to a resolution. Many times, this is the result of the discovery process in which each side has the opportunity to review the other sides finances, including copies of all written documents. Additionally, the courts are overburdened with divorce cases, resulting in additional delays. If both sides agree and enter into a settlement agreement, the process can be as short as a few months.

Can I keep the house ?

One of the recurrent issues in matrimonial litigation is whether one side or the other can keep the house. The answer to this question depends on the facts of the case. Is it economically realistic to retain the house? Are there small children who would benefit from remaining in the house? Is the monthly cost of remaining in the house less than the cost of finding alternate housing? Since the house is many times the single biggest asset owned by the parties, this issue is of critical importance and varies from case to case.

Can I get custody ?

Of all the issues in family law, custody is the most complex. The court is required to award custody in the best interests of the child. In practice, this can be an exceedingly difficult determination. The court will usually order a forensic examination by a psychologist, and will appoint a lawyer (law guardian) for the child. These additional experts add cost and delay to the resolution of the case. Because custody is such an emotionally charged issue, parties may spend tens of thousands of dollars trying to prove they are the better parent. Lost in this legal battleground is the child, who may be torn or "brainwashed" by one or both parents. While there are times a custody battle is appropriate, many times one party contests custody to punish the other parent. In all, a contested custody claim requires serious consideration before proceeding.

What about child support ?

Child support is mandated by law and is calculated based upon a percentage of income. If both parties are employees earning income that is reported on a W-2 form at year's end, the calculation is a simple mathematical computation. The percentages are 17% for one child, 25% for two children, 29% for three children and 31% for four children. The percentage is computed on a party's gross income, less social security and New York City income tax. The percentages apply to the first $80,000.00 of income. Beyond that amount, the court has discretion to apply the percentages or some lesser amount. While these calculations seem simple, they become very difficult when one party is self employed or in a cash based business. In such a situation, the court will try to determine a party's true income in order to apply the percentages.

What about alimony (maintenance) ?

Alimony (now called maintenance) may be awarded when the marriage is of long duration and there is a substantial difference in earning capacity. For instance, in a 25 year marriage where the husband has a large income and the wife has never been employed during the marriage, and where the wife has little skills with which to obtain employment, maintenance for the life of the wife may be awarded. More commonly, maintenance is awarded for a set number of years in order to allow the recipient time to economically rehabilitate him or herself. For instance, maintenance could be awarded for a period of 4 or 5 years to allow the recipient time to go back to college. The governing factors are the length of the marriage and the economic prospects of the parties.

What property will be distributed by the court ?

Under New York State's equitable distribution law, there are two kinds of property. Separate property is property acquired prior to marriage, or property acquired through inheritance. Separate property belongs to the party who has title to it. Marital property is property acquired during the marriage. The court is required to make an "equitable" (not necessarily equal) distribution of the marital property. In a marriage of long duration, most judges will split the marital property equally. Problems can arise in putting a value on marital property (for example, a business started during the marriage). Pensions and retirement accounts are generally considered marital property to the extent that they were earned during the marriage.

My ex-spouse is not paying child support.  What can I do?

The failure to pay child support is a recurring problem in family law litigation. The recipient spouse has a number of options. These include hiring an attorney to try to collect support, filing a petition in Family Court, or filing in Supreme Court. If the support is paid through the local Support Collection Unit, the failure to pay support will result in the suspension of drivers and professional licenses. In addition, if the support order is paid through Support Collection, the order may be reviewed every 3 years for purposes of cost of living adjustments.

My ex-spouse is not paying maintenance.  What can I do?

The obligation to pay maintenance will be enforced by the courts, and upon the application of the recipient spouse, the court may enter a judgment against the non-paying spouse. If the obligation to pay maintenance arises out of a separation agreement, the court may treat the failure to pay as a breach of contract and award interest at nine percent. A court may also award attorneys fees to the recipient spouse.

Can I move with my child to another state?

Whether or not a custodial parent can move away with a minor child (over the objection of the non-custodial parent) depends on the circumstances of each individual case. Generally, the parent requesting court permission to move must have a legitimate reason for the move. A desire for a "fresh start" in another state is generally insufficient. The Court will grant permission if, after a hearing, it finds that the move is in the best interests of the child. The fact that a separation agreement contains language prohibiting such a move is not determinative.

Can I get custody changed?

Changes of custody, like all custody disputes, are emotionally charged issues. The court will change custody if it finds that such a change would be in the best interest of the child. In making this determination, the court will almost always order a hearing, and will probably appoint a law guardian (lawyer) for the child and a forensic exam by a mental health professional. In order to change custody, the moving party must show some serious and substantial reason for the change. The expressed preference of the child is not determinative, although in older children it can carry considerable weight. An application to change custody can be a challenging task, both emotionally and financially.

Can I get my child support increased?

Despite any language in a separation agreement or stipulation of settlement, a court may entertain an application for an increase in child support at any time. Generally, a court will grant an increase if it finds that the needs of the child are not being met, or there has been a change in circumstances of the parties. If an increase is granted, it will be retroactive to the date the application was first filed with the court. An increase can be granted by either the Family Court or the Supreme Court.

Can I get my child support decreased?

A court may grant a decrease in child support if it finds that the payor party is financially unable to comply with the existing order of support. The inability to pay must not be of the party's making. In other words, a party voluntarily quitting his or her job is not entitled to a decrease in support. While courts are reluctant to reduce child support, they will do so when a party's financial circumstances have materially worsened.