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420 Jericho Tpke.,
Ste. 222, Jericho, NY 11753 Phone: (516) 942-3200 Fax: (516) 942-3366
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DIVORCE:
1. On what basis can I seek a divorce in New York?
New York has six grounds for divorce. These are cruel and inhuman treatment,
abandonment for one or more years, imprisonment for three or more years,
adultery, one year of living apart under a separation judgment granted by a
Court, or under a separation agreement signed by the parties. “No-fault” divorce
does not exist in New York State, however living separate and apart pursuant to
a separation agreement is a “non-fault” ground for divorce.
2. What constitutes cruel and inhuman treatment?
Cruel and inhuman treatment is different based on how long a marriage has
lasted. The shorter the duration, the less severe the allegations need to be,
the longer the duration the more severe the allegations must be. It could range
from my spouse told me he/she never loved me and that I am worthless in front of
others causing me severe and extreme embarrassment and humiliation to my spouse
tried to strangle me and was removed from the house by the police in handcuffs
as I was taken to the hospital by ambulance. Adultery can also be alleged as
cruel and inhuman treatment and is easier to prove as cruel and inhuman
treatment than as adultery by itself.
3. I taped my spouse admitting to that he/she committed adultery, and I also
have copies of his/her emails to his/her lover discussing sex they have had, so
I can prove adultery easily, right?
Wrong. To prove adultery, you need more than your spouses confession. You
need more than proof he/she entered a hotel room for a few hours and then left
all disheveled. You need proof of the act itself or admission from the other
person as well. However, you probably have more than enough proof to allege the
adultery as cruel and inhuman treatment.
4. Should I sue for a judgment of separation?
There are few reasons to do this, as then you have to sue again to seek a
divorce. If you go to court, you might as well do it all. Further, under a
judgment of separation, the court cannot address issues of property
distribution. However, this may be a good alternative to divorce for those who
have religious beliefs against divorce or need to stay married for other
reasons, but want to separate and live as though divorced to some extent, but
the other party will not agree.
5. Why shouldn’t I just seek a separation agreement and avoid the fight and
cost of a divorce proceeding?
You should, but you need two parties to agree on how to resolve all issues. If
you can do this, you can also sign a stipulation of settlement to obtain a
divorce without a fight. If the two parties cannot agree, then you need the
help of the court, and possibly for the court to decide all of your issues for
you. A separation agreement is a good vehicle when one party needs the
continuation of medical insurance benefits, or to remain married long enough for
eligibility for social security benefits through your spouse’s benefits (minimum
of ten years of marriage).
6. If I move out to help alleviate the problems in the house in the hopes of
getting back together, is that abandonment?
No. Abandonment requires that a spouse leave the marital residence without the
intent of ever returning for one year or more prior to the start of the divorce.
There are also two other forms of abandonment referred to as constructive
abandonment. One is when you go home and find all the locks changed and your
spouse in the house refuses to let you back into the house for a year or more
before the start of the divorce. In this situation, the spouse still in the
house constructively abandoned the spouse who was locked out. The other form is
when a spouse refuses to have sexual relations with the other spouse for one
year or more prior to the start of the divorce and neither spouse has any mental
or physical illness that would prevent either party from having sexual
relations.
The refusal to have sex is the most common ground for divorce in a settled or
uncontested divorce case.
But be careful, you may being giving silent consent to your spouse staying in
the marital residence and silent consent to him or her having custody by moving
out.
7. What is the difference between an uncontested divorce, a settled contested
divorce and a contested divorce?
An uncontested divorce is one where all issues are resolved by the parties with
or without the help of lawyers or a mediator prior to filing in court or having
any court appearances.
A settled contested divorce is one where the parties did participate in pretrial
litigation to at least some extent, but then settled all their issues without a
trial being completed and decided by a Judge.
A contested divorce is one that has yet to be settled or goes all the way to
trial and is ultimately decided by the Judge.
CHILD SUPPORT:
1. My child is almost 21 and is in his junior year of college. His
father is threatening to stop paying child support on our child’s 21st birthday,
can he do this?
First, it depends on if your divorce was settled by a stipulation of settlement
or a separation agreement (or in the event you were never married, if your child
support proceeding was settled by an agreement). If it was, read it carefully,
especially looking at the section entitled emancipation. If it was agreed to
that if the child is still a student, then child support will continue to some
point in time past 21, then no, he cannot stop child support on your child’s
21st birthday if he is still a student.
However, if this was not agreed to in the agreement, or your case was decided by
a judge, then, yes, on your child’s 21st birthday, he can stop paying child
support.
2. Well, I heard about a new law that I can go back to family court to seek
child support past the age of 21 for as long as our child is a student, is this
true?
No, it is not true.
3. But even if he can stop paying child support on our child’s 21st birthday,
he/she still has to continue to pay for our child’s college education, right?
Wrong, unless there was a written agreement otherwise, his obligation to pay for
college also ends on the child’s 21st birthday.
4. My husband is only willing to pay 25% of his income as child support for our
two children, this is not nearly enough money, how much can I ask a judge to
order him to pay?
The law is clear, absent extraordinary circumstances, the following is the basic
guideline for child support: 1 child – 17%; 2 children – 25%; 3 children – 29%;
4 children – 31%; 5 or more children – 35%. This is of the nonresidential
custodial parent’s gross income less FICA only.
5. My husband has custody of our children, and I am being told that I have to
pay him child support, but I thought as the mother, I never have to pay child
support?
Wrong, child support is a legal and moral obligation of both parents, regardless
of gender.
6. My husband wants joint legal custody, I think he just wants to get out of
child support, could this be?
No, unless he is as uninformed as you are. Joint legal custody only pertains to
joint decision making on major issues of health, education, religion and general
welfare. It does not affect child support in any way at all. Joint or shared
physical custody might, but not necessarily.
7. How might joint or shared physical custody affect child support?
Well, first, let’s forget about labels. Whether it is visitation, joint
physical or residential custody or shared custody, the question is the same,
what is the time division? If your spouse has the child(ren) 50% of the time,
then his direct expenses for the children are theoretically equal to yours. So,
the Court will then also look to each of your incomes, resources and other
expenses, before deviating from the support guidelines. The Court will also
establish the parent who has the child even just one second more as being the
custodial parent for purposes of child support, regardless of the terms used in
your settlement.
8. My x is always a few days late with the child support, what can I do?
He/she thinks the day it is due is the day he/she can mail it.
The child support is due in your hands or the hands of the support collection
unit on the day it is due. The day it is due, is not the day to mail it. It
should be mailed on average 5 days in advance to compensate for the mail being
late.
You need to ask yourself this, how much does it affect you being a few days
late, other than annoying you? To go to court, causes you to loose a day of
work, either a day’s pay or a vacation day. It adds to the stress and bitter
emotions. It will cause more expense if you hire a lawyer, and there is no
guarantee a court will make your x pay for your lawyer. Unless it is causing a
hardship, I suggest just forgetting about it.
Even though the court can have the support garnished by the support collection
unit from your x’s pay check, this often causes a delay in your receiving the
support for weeks, while they set up the account. Too often I have seen the
support collection unit list someone in arrears who is not, or who is, but not
for the amount the unit claims. In my opinion, use this as a last resort.
9. I do not have custody, do I have to pay anything besides the basic child
support amount every week?
Usually, yes. A pro rata share of unreimbursed uninsured medical costs,
childcare, and college. The pro rata share is calculated by dividing your
income by the combination of your income and the other parent’s income.
10. Can the child support payer tax deduct child support?
No.
11. Does the receiver of child support have to pay income tax on it?
No.
12. I owe a lot of money for child support arrears, can I have it discharged in
bankruptcy?
No, and legal fees incurred pertaining to the issue of child support is also non
dischargeable in bankruptcy.
CUSTODY AND VISITATION
1. What is joint legal custody and how does it work?
Good question. It is usually joint decision making of major decisions
concerning health, education, religion and general welfare. It is usually not
joint decision making of day to day decisions, nor emergency decisions. I say
usually, because New York State does not have joint custody as a law. In New
York State, unless two parents agree to joint legal custody, very few judges
will order it. Even if two parents agree to it, many judges will not approve
it. Some judges will only approve it if one parent is designated as the final
decision maker.
Once one parent is designated final decision maker, it is no longer joint legal
custody, but sole custody to that parent.
Too often judges claim it does not work, they claim they see too many joint
legal custody cases come back to court with problems. But that is all they see
– the problem cases. Judges do not see all the joint legal custody cases where
it does work. The ones that do not work, is a very small percent. Thus, Judges
have a very skewed perspective. My favorite is when a Judge says: “But my wife
is a psychologist, or a teacher, and she says …” This is always a very limited
perspective, not authoritative, and very illustrative of a bias based on factors
outside of the case. Such biases and personal feelings should be checked at the
door.
So, to avoid problems, define joint legal custody in your agreement. Define
what it applies to, i.e., major decisions of health, education, religion, and
general welfare. Define what it will not apply to, i.e., day to day decisions
and emergency decisions shall be made on a an emergency basis with notice to the
other parent as soon as is reasonable possible. (If your child broke a bone,
wants you there for comfort, and to be center of your attention, it is not the
time to pick up a phone.) I also like to limit major decision to be made when
possible, i.e., the child’s religion is _____, the child shall continue to
attend public school.
2. So, then, if I have sole custody, I do not need to discuss any of these
matters with the other parent?
Wrong, but a common misconception. You must inform the other parent of the
major decision to be made, and accept his or her input and opinion, then you can
make the decision on your own.
3. If I agree to joint legal custody, won’t the other parent be a pain all the
time trying to assert his or her opinions or will?
In some cases, yes, in most cases, no. Usually, once time has gone by, things
settle down, and no one tries to “assert” his or her self. Usually, it is those
without a share of decision making who tries to assert his or her self.
Otherwise, approached right, the one who never did much during the marriage or
relationship as to decision making, backs off and goes with the flow. Just let
the other parent feel empowered, and the parent usually does not use the power,
after time has passed.
4. Can joint custody benefit me or harm me?
Like everything else, it can go both ways, depending on how you define harm and
benefit. Most often, it will benefit you. Nonresidential custodial parents
with joint legal custody are usually more up to date with child support and more
willing to contribute more financially on his or her own. It frees up your
schedule if you cannot take care of something for the child(ren), as the other
parent will be more willing to be involved and take care of it. In the end, it
is the child(ren) who will benefit most from joint legal custody.
5. I have sole custody, and my x refuses to tell me complete details about his
or her visitation time with our child(ren). When I tell him or her what to and
not to do during his or her time with our child(ren), he or she never does it.
I call him or her several times a day to check on our child while with him or
her, and other than answering my calls once per day, they are ignored. Can I
got to Court and have his or her visitation stopped?
Absolutely not. You are not allowed to micro manage the other parent’s
visitation time with the child(ren). That parent does not have to report to you
at all. Your behavior can be termed visitation interference. You are entitled
to only phone call per day on a day the child(ren) are not at all with you, to
speak to the child(ren), not the other parent. Absent the child (ren) being
sick, or something happening like a severe injury, the other parent need not
tell you anything. Consider yourself lucky the other parent has not yet taken
you back to court.
6. Is there a standard visitation schedule?
No, not really, but most common is alternate weekends, Friday evening through
Sunday evening, and one or two mid week dinner visits, maybe a midweek
overnight.
When the parents do not at all get along or trust each other, I like from Friday
at the end of school or camp or childcare, to the start of school or camp or
childcare Monday morning. I also like the mid week to be from the end of school
or camp or childcare until the next morning at the start of school or camp or
childcare school or camp or childcare the next day. Communication can then be
by email. This avoids exposure of the child(ren) to the acrimony of the
parents, by ensuring the parents avoid each other.
7. How easy is it for a parent to relocate with the children?
Every case is different, but in general, not very easy. The parent wishing to
relocate the children will have to show that the move is in the children’s best
interest, and not just in that parent’s best interest. If the issue is money
problems, the parent will have to show that all possibilities of improving his
or her finances here has been exhausted, unless it is due to nonpayment of
support from the other parent. The comparison of schools and crime rates will
also come into play, as well as the location of extended family and how much
they are involved with the children. A big factor will be how often does the
other parent see the children and participate in the children’s school life and
other activities. A new spouse out of state is not necessarily a good enough
reason. A better job out of state is not necessarily a good reason. Acrimony
between parents might be a good enough reason, if the moving party is not
primarily at fault, and the acrimony rises to such a level as to endanger the
mental well being of the children. The distance is very important. The court
is more apt to approve a relocation to a neighboring county than to another
state or across the same state. There is even a case where a father only had
supervised visitation pursuant to an Order of Protection, and the Court did not
allow the relocation.
If you want to avoid your children being relocated, make sure to be up to date
in your support payments (not supposed to be a factor but often is), use all of
your scheduled time with your children, go to all their school events and
extracurricular activities, and try to avoid any and all confrontations with the
custodial parent and never talk bad about the other parent to the children.
MAINTENANCE:
1. What is maintenance?
To simplify, maintenance is the term now used for spousal support, formally
known as alimony. I like to refer to it as unemployment benefits for separated
and divorced spouses.
2. So, my husband makes more money than me, so he will be ordered to pay me
maintenance, right?
Wrong. The fact that your husband makes more money than you is only factor
considered by the court in deciding whether or not to order maintenance, how
much and for how long. The Court looks at the standard of living of the
marriage, the length of the marriage, health, ages, education, training, job
experience and the income histories of the past three years of both spouses, to
determine earning ability. The Court looks at how old the children are, and how
long, if at all, a spouse was out of the work force. If you are earning $30,000
or more, I doubt you will receive maintenance on top of child support unless
your husband is earning over $100,000.00 and your life style during the marriage
warrants it. Maintenance is to help you until you become self-supporting.
3. Can I be ordered to pay my husband maintenance?
Yes, theoretically. If you were always the major breadwinner, and he is not
self-supporting, is disabled, or does not earn close to an amount to live at the
standard of living of the marriage, you might be ordered to pay him
maintenance. The law is “supposed to be” gender neutral.
4. How does the court determine how long maintenance will be paid for?
Again, the Court looks at the standard of living of the marriage, the length of
the marriage, health, ages, education, training, job experience and the income
histories of the past three years of both spouses, to determine earning
ability. In a marriage that lasted for 30 years, the spouse in need stayed
home, has no education or job experience to speak of and is not in great health,
lifetime maintenance can be expected. In a marriage that lasted 8 years, the
spouse in need has a college degree and has been working earning $35,000.00 or
greater, probably no maintenance at all. In a fifteen year marriage and the
youngest child is 12, and the spouse in need has prior work experience and/or
college degree, based on incomes of the parties, maybe as much as $1,000.00 per
month for up to five years, maybe only $50.00 per week for three years. The
concept is to fashion an award to allow the party in need to become
self-supporting.
5. Can the maintenance payer tax deduct maintenance?
Yes, so long as it is not written as tax-free maintenance.
6. Does the receiver of maintenance have to pay income tax on it?
Yes, so long as it is not written as tax-free maintenance.
7. I owe a lot of money for past due maintenance, can I have it discharged in
bankruptcy?
No, and legal fees incurred pertaining to the issue of maintenance is also non
dischargeable in bankruptcy.
PROPERTY DIVISION:
1. What kinds of property are at issue in a divorce?
All property of every type is first viewed as to whether or not each item is
marital or separate property. All property is considered marital property
unless a party can prove it to be separate.
2. What is separate property?
To be separate property, it had to be owned prior to the marriage and no marital
resources having been put into it after the marriage, or it was purchased with
funds held prior to marriage and maintained separately, or was a gift to just
that spouse. Sometimes a piece of property can have both a separate and marital
elements. For example, a house one spouse bought before marriage, and then
after marriage the mortgage continued to be paid with funds earned after
marriage or it had capital improvements done to it during the marriage with
marital funds. You would have to prove you owned the house before the marriage,
how much money you had put into it before the marriage, the value at the time of
marriage and the value today, to prove a separate property component and obtain
a credit for it. If no marital funds were put into after marriage, you need to
produce proof of that as well.
The down payment on house if used from funds you can prove you had prior to
marriage or as being a gift to just you.
Stocks that you owned before marriage, will remain separate if the only increase
in value was passive, and you did not seek investment advice from your spouse.
The portion and value of a retirement benefit which existed up to the date of
marriage and the portion that accrued after the divorce was commenced.
These are but a few examples.
3. What is marital property?
Everything that neither party can prove is separate property.
4. What about my personal property? Is that separate or marital?
It could be either. Most personal items are usually viewed as the property of
that spouse, however, in the event it is an item of great value, it will be
subject to division if you cannot prove it to be separate property. For
example: expensive jewelry, boats, cars, furniture, furs, and so on. But you
should always be mindful if the value is truly worth the litigation or not.
5. Does it matter whose name the property is held in?
No, it does not. As long as it is in either spouse’s name, it is marital if not
proved to be separate. If it is in someone else’s name, but was bought with
money from either spouse, it can also be subjected to distribution by bringing a
constructive trust action against the other person, or offsets in distribution
due to dissipation of marital assets.
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Feel free to send me an email with your questions. ... MaceNYLaw@optonline.net
Mace H. Greenfield