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Frequently Asked Questions About New York Divorce
Is New York a no-fault divorce state?

No, New York is considered a fault divorce state. There are six grounds for divorce, five of which require proof of misconduct or fault by the other spouse. The only ground that does not require a finding of fault is the ground permitting a party to sue for divorce after the parties have lived separate and apart for one or more years pursuant to a written separation agreement. Since the parties must consent to the signing of the separation agreement a party cannot obtain a divorce without the other spouse's consent to a written separation agreement or proceeding on the fault grounds.

What is Equitable Distribution?

Equitable distribution is a general term that basically means that a court, upon dissolution of the marriage, is empowered to divide marital property in accordance certain factors. New York is an equitable distribution state and Not a community property state. The equitable distribution law can be found in Domestic Relations Law section 236 B.

What happens if the divorce is denied?

If the divorce is denied, the court cannot equitably distribute property. It can, however, decide other issues, such as custody, child support, exclusive use and occupancy of the marital residence, and maintenance. If maintenance is awarded it must be for an indefinite period of time, i.e. it cannot be limited to a number of years.

Is there a preference of either spouse in custody proceedings?

There is no preference of either spouse in a custody proceeding. Domestic Relations Law section 240 states that there is no prima facie fight to the custody of the child in either parent.

Can I receive part of my spouse's pension?

Yes. All retirement benefits acquired during the marriage are marital property subject to equitable distribution. Retirement benefits consist of among other things, pensions; 401(k) plans, employee stock option plans, annuities; and any other form of deferred compensation.

How is a pension transferred to me after a divorce?

If a court awards a spouse part of the pension benefits of the other spouse, it is transferred by means of a domestic relations order, If it is a pension governed by ERISA, then the domestic relations order must comply with ERISA and the Internal Revenue Code. Once the pension plan administrator determines that the domestic relations order is in proper form it is called a qualified domestic relations order (QDRO) and will be filed with the pension plan administrator. Attorneys usually obtain the services of a pension actuary to prepare the order.

If a spouse transfers part of an IRA to the other spouse, what are the tax consequences?

If the IRA is transferred to a rollover IRA by means of a qualified domestic relations order, there are no tax consequences at that time. Taxes will be imposed upon withdrawal of the IRA funds transferred to the spouse.

What about other assets?

All marital assets will be equitably distributed. It is important to have proof of the value of the marital assets to enable the court to make a distribution.

Is fault a factor in equitable distribution?

As a general rule, marital fault is not a factor in the court's determination of equitable distribution. If the conduct of a spouse results in waste of marital assets, it will be considered. This is referred to as economic fault.

How is maintenance determined?

There are 13 factors set forth in Domestic Relations Law section 236 B 6, They are:

  • income and property of the parties
  • duration of the marriage and the age and health of the parties
  • present and future earning capacity of both parties
  • the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor
  • reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
  • the presence of children of the marriage in the respective homes of the parties
  • the tax consequences to each party
  • contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
  • the wasteful dissipation of marital property by either spouse
  • any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
  • any other factor which the court shall expressly find to be just and proper

Is my maintenance taxable?

Yes. The internal revenue code states that alimony (maintenance) is taxable to the recipient and deductible by the payor. The parties are permitted to agree that the maintenance will not be taxable by the recipient and not deductible by the payor.

Is a property distribution taxable to me?

No. A property distribution is not taxable. The only tax consequence that will possibly arise will be upon the sale of those assets.

What about child support?

A custodial parent is entitled to child support in accordance with the Child Support Standards Act (CSSA). The child support formula and guidelines can be found in Domestic Relations Law section 240 or Family Court Act section 413. The percentages are based on gross income less FICA taxes, Medicare taxes, and local (NYC or Yonkers) income taxes, Basically the formula is as follows:

One Child 17%
Two Children 25%
Three Children 29%
Four Children 31%
Five or more Children No Less than 35%

Do I have to pay taxes on my child support?

No. Child support is tax free.

Who is entitled to the dependency exemption for the children?

The internal revenue code provides that the custodial parent is entitled to the dependency exemption for the children. If the custodial parent gives that right to the non-custodial parent she/he waives that right by signing form 8332.

What is the best way to avoid a lengthy and costly trial?

The parties are free to chart their own course in a divorce action. If each party recognizes that marriage is an economic partnership, are forthright in disclosing all marital assets, and are willing to share those assets, a costly and time-consuming trial can be avoided.

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