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Divorce in New York - Some Answers to Difficult Questions
Alternatives to Litigation

It is important that you are made aware of mediation. Mediation is a process in which you and your spouse work out your financial and marital differences with the assistance of a neutral party known as a Mediator. Divorce mediation is effective because it allows parties to resolve their differences in an amicable setting. In all divorce mediation settings, it is suggested that you obtain the assistance of an attorney to adequately advise you of the law. A mediator is not permitted to provide legal advice or assistance to either party. Discuss with your attorney his/her position regarding mediation prior to your representation.

Grounds for Divorce

In the State of New York, we have only one provision regarding no-fault divorce: living apart according to a written separation agreement or separation judgment for more than one year. It is otherwise necessary for a party to prove the other party is guilty of "fault;" cruel and inhuman treatment, adultery, abandonment for a period of more than one year, or constructive abandonment (refusal to have sexual relations) for more than one year.

Commencing the Process of Divorce

Once you obtain the assistance of an attorney, the process begins. You should discuss with your attorney if you wish to file an action for divorce. Alternatively, your attorney can write a letter to your spouse or your spouse's attorney indicating your position regarding filing for a divorce or negotiating a separation agreement. In the event you proceed to file for divorce, it is necessary for a sheriff or process server to serve the papers on your spouse, who then has 20 days to respond. Additionally, you should discuss with your attorney various types of relief which can be requested from the Court before a final resolution of your case.

Temporary Relief

There are various types of temporary ("pendente lite") relief that you may consider upon filing a divorce action, such as the following:

  • Order of Protection: If there is physical or verbal abuse, or any form of harassment by your spouse of you or your children, you should consider discussing with your attorney filing a Petition for an Order of Protection. It is a sworn pleading in which you request that the Court order your spouse to no longer physically, verbally, or emotionally harm you or the children. In the request for the Order, you can ask that the abusive spouse be removed from the marital residence if the conduct is especially harmful.
  • Injunctive Relief; Freezing Assets: If you suspect that your spouse will dissipate or hide any of your marital assets, you should discuss with your attorney the possibility of freezing certain bank accounts, IRA accounts, pension accounts, other financial accounts, or business assets to preserve the property of the marriage.
  • Temporary Maintenance: If you need funds and your spouse is unwilling to assist you in handling the finances during the pendency of the divorce, you can request an Order of temporary maintenance (spousal support) from the Court.
  • Temporary Child Support: In the event there are children under the age of 21 who are not self-supporting, it will be necessary that you and your spouse determine together how you are going to provide for their financial support during the pendency of the suit. If your spouse is unwilling to financially assist you, then you can file in Court for relief. New York has very strict child support laws which the courts are required to follow and enforce. The basic amount the Court will set is based upon a percentage of both incomes (yours and your spouse's) allocated proportionately between you. Additional expenses for the children, such as child care, after-school and summer activities, or religious school will also be proportionately allocated between the parents based upon incomes.
  • Temporary Attorney's Fees and Litigation Expenses: If you are not financially able to afford an attorney and your spouse has a superior financial ability to provide funds for you to obtain an attorney and for the expenses of litigation, you can request that the Court award these fees and costs during the course of the lawsuit.
  • Temporary Custody: If your spouse is no longer residing in the marital residence with you and custody is an issue, you can request that your attorney help you obtain temporary custody of the minor children.
  • Temporary Restraining Order Regarding Removal of Minor Children: If you believe your spouse will remove the minor children from the State or your locality and will hide your children or prevent you from having meaningful contact with them during the pendency of the litigation, then you can discuss options with your attorney.

Division of Assets and Liabilities

The New York Legislature has adopted a Statute which determines the division between the parties of their property and debts. This is known as the Equitable Distribution Law (EDL). The EDL designates that all marital property and liabilities are to be divided between the parties. Additionally, the Court is to consider all separate (non-marital) property as well as non-marital

liabilities in determining the distribution of the parties' property. There are many other factors that the Court utilizes in making a property distribution.

Child Custody

In child custody proceedings, the Court may provide for joint custody in instances where it finds the parties can cooperate on issues regarding their children. Joint custody means that both parties are jointly responsible for making major decisions regarding the general welfare and well being of their minor children which include education, religion, health and extracurricular activities. The parent with whom the minor children will reside during the majority of the year is designated the primary residential custodial parent. The other parent will be provided with reasonable rights of access and contact with the minor children.

In other cases, however, one party may be awarded sole custody, which is when just one parent is responsible for the general well being and making decisions on behalf of the minor children. The other parent will then usually have specified visitation and contact times with the children. This is usually the case when it is clear that the parents have problems agreeing on decisions affecting their children's interests.

If the Court determines that there may be a problem with visitation, it can require that the visitation be supervised by an agreed-upon neutral party or agency. Speak to your attorney about this possibility if it is of concern.

Child Support

In all instances, both parties are responsible to provide child support to their minor children until age 21 or otherwise "emancipated" (usually, self-supporting). This is customarily done by a noncustodial parent paying to the custodial parent a certain sum of money based upon a percentage of their combined incomes and number of children. The New York Legislature has adopted Child Support Standards which involve a percentage calculation that designates the amount of child support to be provided by the parents. Other forms of child support are health insurance, after-school care, summer camp, extracurricular activities and special needs of the minor children. Life insurance should also be taken into consideration to secure the amount of child support to be paid by the nonresidential custodial parent in the event that parent dies before the children turn 21.

Maintenance

There are two basic forms of maintenance (spousal support) which are awarded for the purposes of support: rehabilitative (sometimes called "durational") and permanent. Permanent maintenance is an amount of money paid periodically to the recipient spouse during the lifetime of both parties. These payments terminate upon remarriage of the recipient or death of either spouse. Rehabilitative or durational maintenance is a certain sum of money paid over a specific period of time, the purpose of which is to provide training for job skills to the recipient spouse in order to make him/her self-supporting or to provide as an assist to that spouse's support needs until he/she can become self-supporting. These payments terminate at the date specified in the award, upon the death of either party and may terminate upon remarriage of the recipient spouse.

Please note, maintenance is based upon the need of the recipient spouse and the ability of the paying spouse to provide these funds. The Court must also determine the award based upon length of the marriage, the parties' standard of living during the marriage, how the property and debts of the marriage has been divided, and other factors.

Divorce Settlements

Divorce settlements usually involve financial issues. The following are some areas that have been highlighted for you to consider in the division of your property and debts:

  • The marital home and other real property. New York is not considered a title holder state so one can presume that all property acquired during the marriage through marital funds, labor and/or services is the marital property of both parties. You must make a determination of how you wish to distribute your property and if you desire to continue to reside in the marital residence for a specific period of time after your divorce. In order for one party to maintain the marital residence, you must consider the expenses related to that residence and whether you can possibly afford it with or without support provided by the other spouse.
  • Other Assets: The following is a partial list of assets that you should take into consideration when distributing your marital property:
    • Pension
    • Profit sharing
    • Other retirement benefits, IRA's
    • Stereo, computer, TV, and electronic equipment
    • The value of a business or profession
    • Household property
    • Stocks, bonds, portfolios and stock options
    • Cars, vehicles, boats, recreational vehicles
    • Cash and respective bank accounts
    • Professional licenses and advanced degrees earned during the marriage
    • Mutual funds, savings bonds and other investment items
    • Collectibles, guns, tools, antiques
    • Any other assets which have a fair market value or a sentimental value

Other Settlement Considerations

One must take into consideration the other items of relief you may request in preparing for your divorce settlement:

  • Health insurance for the spouse and minor children
  • Life insurance to secure a child support award and/or a maintenance award
  • Disability or accident insurance to protect the child support award and/or maintenance award.
  • Annuity or trust to secure a settlement
  • Any other matters appropriate to your particular situation

Liabilities

It is always important to consider any and all debts (liabilities) that have been incurred during your marriage when making an adequate determination of the distribution of your property. The mere fact that a separation or settlement agreement designates that one party should be responsible for a third-party debt may not protect you. It is necessary to discuss with your attorney clauses regarding indemnification, being held harmless and the effect of those clauses in your divorce settlement.

Bankruptcy Implications

There are several other issues that are necessary for you to discuss with your attorney regarding your divorce settlement. One is the effect of your spouse filing for personal and/or corporate bankruptcy. It is important for you to determine if you will be financially protected if this occurs.

Tax Implications

In every divorce settlement, it is necessary to obtain the advice of an accountant or tax advisor to become fully aware of the tax implications regarding the distribution of your assets as well as the tax impact of maintenance payments.

"Experts" in Divorce Cases

Discuss with your attorney what other professionals (experts) should be utilized in your divorce case. Experts that might be utilized, depending on the facts of your case, can be an accountant, tax attorney, business valuator, real estate appraiser, antique appraiser, psychologist, psychiatrist, vocational therapist, or physician. Sometimes, even other attorneys can be utilized as an "expert" regarding an issue in your case.

Counseling

Going through a divorce is a significant and emotional time in your life, and it may be necessary for you and your children to obtain therapeutic counseling before, during and after the divorce process. There are other forms of counseling that you can utilize during the divorce process, which may include your local clergy. It is suggested that you utilize someone who has therapeutic training in assisting you and your children in the divorce process other than relying on a friend to be your counselor, since a skilled professional can identify certain emotional problems that one experiences during divorce and can provide immediate intervention which could successfully help you or the children through the entire process.

Conclusion

Going through the divorce process is an extremely emotional experience in your life. Quite often, emotions might cloud judgment due to feelings of anger, hostility, fear and disloyalty that you might experience. Your main objective is to maintain an emotionally healthy state of mind during this process in order to ultimately obtain a successful settlement of your divorce. It is important to protect your minor children during this process and not have them become involved because it will have an extremely overwhelming effect on them, which could create certain destructive behavior in them, both during the process and afterwards. It is important to be aware of your minor children's feelings during this process and to protect them and provide adequate therapeutic intervention, if necessary, to assist them in dealing with their own feelings while you are going through your divorce. The decisions you make before and during your divorce will have a lasting effect for your future and that of your children.

It is important that you provide to your attorney your accurate and complete assistance and knowledge concerning the reasons for the divorce, your finances and your goals in order to obtain a fair and adequate divorce settlement.


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Marital property is all property earned or acquired during the marriage. Separate property is that owned by one party before the marriage. In New York, separate property is awarded to that individual. However, the increase in value of separate property that occurs during the marital period may be divided under the equitable distribution system. Separate property also includes gifts or inheritances received during the marriage.
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