NY Divorce Law
Contested and Uncontested Divorces
• Main Divorce Page
• Equitable Distribution
What questions will be raised?
Who gets to live in the house during the divorce?
How is child support determined?
Child Support Guidelines
What are judges most concerned about?
Some litigation terms
In an unhappy marriage, the time may come when one spouse decides that the right decision is to seek a divorce.
A divorce action begins when one spouse is served with a summons demanding a divorce.
Along with granting the divorce, the court has the power to decide issues of property division, maintenance, support and custody of the minor children. As in all cases, the final outcome will be based on the specific facts that your situation brings, the New York State statutes and previously decided cases with similar facts.
In many cases, the parties usually come to an agreement and it is not necessary for a judge to render a decision.
Even if the parties cannot agree on certain issues, some form of negotiation or mediation usually narrows the issues and steers the parties toward a settlement.
We recommend to all our clients that they seriously consider dispute resolution as the preferred method to resolve matrimonial disputes. It is highly recommend that you seek and receive legal counsel.
The emotional pressures of a divorce are very strong and the ability of the party to make sound decisions that are in their best interest is compromised.
In most cases, each spouse hires an attorney for representation in court.
Whether a spouse is negotiating a settlement or litigating, he or she needs legal counsel to get the benefit of all the law has to offer.
Litigation in court is costly from both the financial and emotional perspective. However, many cases that are eventually settled begin through litigation.
A matrimonial attorney represents the interests of one spouse in the traditional attorney-client relationship.
This is whether the case is actually litigated or just negotiated for a settlement.
What questions will be raised?
A matrimonial action usually involves the following issues:
Custody of the children
Visitation schedules
Child support calculations, and how payments are handled
Any restrictions on moving the children
Whether insurance must be maintained
Which parent claims the children as tax dependents
Division of property, and deed transfers
Division of checking, savings, and investment accounts
Allocation of debts
Indemnification of future debts
Cash Settlements
Who gets to live in the house during the divorce?
If the spouses have minor children, the parent who is the primary caretaker (spends the most time with the children), usually remains in the marital home with them. If you don't have children and the house is the separate property of just one spouse, that spouse may ultimately be awarded exclusive possession of the home. Certain factors will impact whether the spouse who claims exclusive ownership will prevail. One such factor is if the mortgage on the home was paid by marital income. Earnings from employment are almost always regarded as a marital asset.
Neither spouse has a right to throw out the other spouse. A party can request that the other person leave, but he or she is not obligated to comply. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in.
The proper method of getting your spouse to leave is to request it from the court.
If your spouse has committed domestic violence, you may petition a judge for a restraining order. The order may require your spouse to vacate the premises.
Whether there are children or not, when circumstances call for it, your attorney can petition the court for an order or negotiate a stipulation that that is equitable for both parties.
How is child support determined?
The parties can stipulate and agree to almost any terms affecting their divorce. The most important exception are factors that affect the welfare of minor children.
The amount of court ordered child support is determined by applying a percentage to the gross incomes of both parents, according to the number of children in the family. In addition to earnings reported on the most recent Federal Income Tax form, income will include worker's compensation, disability benefits, unemployment insurances, social security, veteran's benefits, pension and retirement benefits, fellowships and stipends and annuity payments, as well as certain investment income. The Court may also include income from other sources.
Certain deductions from income are allowed including alimony or maintenance actually paid; federal taxes, and FICA payroll deductions.
Prenuptial Agreements
Equitable distribution case summaries
Statute on equitable distribution,
maintenance and child support.
On divorces complicated
by bankruptcy.
Child Support Guidelines
The law provides that basic child support be determined by applying percentages to the combined parental income (CPI) of the parties and then prorating the child support between the parties in proportion of each party's income to the combined parental income. The percentages are applied to the first $80,000.00 of combined parental income. These percentages are as follows:
17% for One Child
25% for Two Children
29% for Three Children
31% for Four Children
No Less than 35% for Five or More Children
What is equitable distribution?
Equitable distribuition is a legal term for the method in which marital property is divided after a divorce.
In New York State, property earned by either spouse during the marriage is considered marital property.
Each spoouse is entitled to one half of the total value of marital property upon divorce.
Disputes sometimes arise as to whether property was "earned" or was acquired by some other method. Another common
reason for dispute is the amount of each spouse's non-cash contribution to the marriage. Yet another issue of possible contention is a party's contribution to a spouse's educational degree of professional attainment.
Through a legal mechanism called "discovery" each spouse is entitled to all documents, records, receipts, statements and all other information that may impact the outcome of the case.
Litigating parties are usually taken aback when very intrusive demands are made by the other spouse for what may normally be considered private and confidential records.
What a judge is most concerned about
Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:
1) Property division called "equitable distribution";
2) Spousal support called "maintenance";:
3) Custody, of minor children;
4) Visitation; and
5) Child support.
If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid adversarial divorce litigation.
Conversely, if there is disagreement on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a judge. The couple may also voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce or they may be ordered by the court to do so. It is important to consult with an attorney before deciding which method is right for your situation.
Divorce Litigation
The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include the some version of the following components:
Petition - The filing of the summons and complaint formally initiates divorce proceedings.
Summons & Complaint - Formal notice to your spouse about your intent to pursue court action to obtain a legal divorce. The response is the other parties' acknowledgement the divorce procedure has begun.
Legal Process: Some Definitions
Motions - A formal request to the court to order some type of relief (e.g., child support) before the trial. For example, in abuse situations it is not uncommon to file a motion for a protective order or restraining order.
Discovery - The phase of the proceeding where each side gathers information in support of their legal arguments. It is an important phase in contested actions, particularly if you belief your spouse is hiding assets. It includes depositions and interrogatories.
Hearings & Temporary Orders - In some instances there are questions or situations that need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. For example, if the couple can't agree about where their children should live during the process they would ask the judge, during a hearing, to decide. Temporary orders generally remain in effect until the final decision is made at the end of the divorce process.
Trial - A critical court appearance before the judge where the case will be decided. The trial may include witnesses, friends, financial experts, psychologists, as well as other types of evidence including financial records.
Judgment - The final decision is a judgment. It is not a verdict in the sense the judge assigns blame to either party. It is simply a legal statement of the judge's rulings on all the issues in question during the trial, such as custody, visitation, support and property division.
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