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NEW YORK IS A NO FAULT DIVORCE STATE.
How long will the divorce take and how expensive will it be?
A divorce will take as long as the parties fight and will be as expensive as the parities make it. This might sound like a glib answer, but it isn’t. The issues of a divorce are money, property and children. If the parties can resolve the issues without recriminations, the divorce can move forward quickly and with a minimum of legal fees. Divorces become long and expensive when the parties fight. Also, be aware of a divorce lawyer who stokes your fires of anger. There are a small, but significant number of divorce lawyers who create conflict rather than reducing it. These divorce lawyers’ motives can range from simple greed to having identified too strongly with the client. A good divorce lawyer does not create conflict to inflate billing or become so emotionally involved that he/she cannot give rational legal advice.
If my spouse is at fault for the failure of the marriage, will I win?
You win a divorce by getting past the anger. Winning is six month after the divorce, thinking, “I haven’t thought of my spouse in six months.” But, sometimes, the fighting becomes the end in itself. Many people feel the need to have the court declare that their spouse is an evil person. It won’t happen. The court is not concerned with who was responsible for the failure of the marriage. From a moral standard point, the court is not concerned with who was at fault. If the parties want a divorce, the court will grant it. Also, winning is keeping your legal bill down. When you would rather pay your divorce lawyer to fight you may have reached a bad emotional state.
The court will not decide issues of property distribution based upon bad behavior. In New York, the court will only adjust the property distribution is the other spouse actually tried to kill the other. There are published decisions where the husband literally knocked his wife’s jaw across the room, and another where the husband used a machete and a sledgehammer on his wife. In those cases, the court gave the wife a greater share of the property. Adultery will not result in a alteration of the property distribution.
If the house is in my spouse’s name can I still be awarded part of it?
Title is irrelevant in New York divorce law. The real question was whether the house was acquired during marriage. Property acquired during marriage is marital and subject to distribution.
My husband said that because the money for the house came from his salary, he owns it.
This is not true. Money earned during marriage is a marital asset. Any property bought with money earned during marriage is a marital asset.
If my spouse committed adultery will I get the kids?
The issue of adultery is not relevant to custody and visitation. Again, this goes to the point that the court is not going to get involved in the morality of the parties. The court looks to the best interest of the children, without regard to the morality of the parties. The court will look to who can provide better parental time. A non-working spouse is generally in a better position than a working spouse. If both parties work, then other factors will come into play, such as housing, parenting skills, school districts and the like. The other main factor, is who has been the primary care giver. The primary care giver generally will get the custody, unless the other party can show neglect or abuse.
How expensive is a custody fight?
Very. We would only counsel a custody fight if the custodial parent is dangerous to the health, safety and welfare of the child. Otherwise, it is not worthwhile unless there is a reasonable chance of success. The reason why a custody battle is so expensive is that court will bring other actors into the case. The court will appoint a lawyer for the children, who is called the attorney for the child. The parties will generally pay this attorney’s fees. Sometimes where there is a non-working spouse, the court will require the working spouse to pay the entire fee of the attorney for the child. The court will also appoint a psychologist to conduct an examination and issue a forensic report. Again, the parties will have to pay for this. Before you even pay for your divorce lawyer, the court has already imposed these other costs. The trial on custody can take several days. All told, it’s common for a custody case to cost a minimum $25,000 just to pay your divorce lawyer. Frequently, they cost a lot more.
What happens if I leave the house?
Many people think that if they leave the house they will lose the divorce. This is not true. Staying or leaving will not effect the division of property. It does have an impact on custody. Generally the court will award custody to the primary care giver. If a parent leaves the marital home, it is now tougher for that parent to win custody. The general rule is that the parent who has the children keeps the children.
Since October 2010, the decision to leave the house has become harder. Since October 2010, the legislature past a “temporary maintenance” law. This law pretty much mandates that the working spouse, or spouse who makes more money will pay temporary support to the other spouse. If you leave, you might get hit with not only child support but temporary maintenance, even if the spouse would never get maintenance at the end of the divorce. I go into more detail below on this one.
Can I get alimony?
No, we have something called “rehabilitative maintenance.” The law has changed for divorces which are filed on or after January 26, 2016. Under the pre-2016 law the court will look to 20 factors to determine if, how much and for how long maintenance shall be. Under the new law, the court will take a percentage of the respective incomes. The person who makes more money, regardless of sex, may well have to pay maintenance to the other. We have a more detailed article on this new law.
Can I get alimony (support, maintenance) while the divorce is pending? Also know as “pende lite support” or “temporary maintenance”.
Since October 2010, we have a temporary maintenance statute. Basically, it removes the discretion of the judge and pretty much mandates that temporary support be paid. The criteria for temporary support are completely different from the final support order at the end of the divorce. This is strictly based upon percentages of income.
The law has been updated for all new divorces filed after October 26, 2015. If you divorce was filed under the old law, you follow that.
Old Law: Basically, you take 30% of the income of the spouse with the greater income and subject 20% of the spouse with lesser income. Then you take 40% of both incomes and subtract the lesser earning spouse’s income. The support number will be the lower of the two calculations. That’s it. Let’s look at two examples:
1. Spouse has stolen $500,000 in marital assets. She is living with her boyfriend and doesn’t work as she now pregnant with his child. The husband earns $100,000 a year. She probably won’t get maintenance at the end of the divorce, however, while the divorce is pending the court will order $2,500 a month in temporary maintenance.
2. Wife earns $450,000 and lives in her own apartment. Husband earns $100,000 and lives in his own house. The parties have been separated for over a year. The husband makes a motion for temporary support. Under the statute she must pay him $9553.33 a month while the divorce is pending.
New Law: For a more detailed explanation see our new post on this. Basically, there are two calculations, one if the paying spouse is also paying child support and the other when he/she is not. If child support is being paid, then we take twenty-five percent of the payee’s income from twenty percent of the payor’s income. Then we add both incomes and multiply by 40%. We subtract the payee’s income from this 40% calculation. Now, we have two calculations, so we take the lower number and that’s the temporary spousal support. The calculation for when no child support is being paid is identical to the old law, as explained above.
Let’s take an example to explain the new law better:
Judy has the kids, and Bob will be paying child support. Before we calculate child support, we have to calculate the temporary maintenance. Bob makes $125,000 and Judy makes $35,000. Twenty-five percent of Judy’s income is $8,750. While twenty percent of Bob’s income is $25,000. We subtract $8750 from $25,000 and get $16,250. With me so far?
Now, we take the combined incomes of Bob and Judy, which is $160,00. Forty percent of that is $64,000. We subtract Judy’s $35,000, and that leaves us $29,000. The first calculation gave us $16,250, which is lower than $29,000. The court will therefore award Judy $16,250 in temporary maintenance.
NOTE: When calculating the child support, Bob’s income will be reduced by $16,250 and Judy’s income will be increased by $16,250. The temporary maintenance ends when the divorce is over or one of the parties dies.
Can I get my spouse to pay my divorce attorney’s fees?
Probably. The court has discretion, and the basic law is that if there is a spouse with greater resources, the spouse with fewer resources may be able to get attorneys’ fees. However, for actions filed after October 11, 2010 there is a presumption that if your spouse has more money, then s/he will have to pay for your lawyer. This law is somewhat complicated and I expect there to be a lot of fighting over it’s exact meaning. But, on it’s fact it would appear that the you can get the court to order attorney’s fees.
Where do I go to get an order of Protection?
There are two types of orders of protection. One is issued by the local criminal court and the other is issued by the Family court. An order issued by the criminal court results from an arrest. Once a person has been arrested for a domestic violence crime, the local district attorney’s office prosecutes the matter. The DA’s office does not have to stop a prosecution if a victim wishes to drop the charges. A Family court order of protection results when a person goes to the Family Court and swears out a petition, alleging acts of violence or harassment. There is no criminal penalty and the petitioner can drop the charges at any time.
Can I get child support and if so how much?
Under New York law, support for children is determined by the number of children. For one child the support is 17 percent of the income. Two children is 25 percent, three children is 28 percent. Income is defined as money received, from what ever source. Generally, but not always, this means the amount of money a person earns at work. However, other monies can be counted. If a person lives rent free in an apartment owned by his parents, the value of the monthly rental will be added to his income for child support. If a person parents give him money on a regular basis, then that money will also be included in the income. Under the Family Court Act, the custodial parent may be entitled to an award for the cost of the lawyer. This is not an absolute, but the court is empowered to award attorney’s fees.
If I lose my job to I still have to pay child support?
Absolutely, losing a job or a reduction in income is not grounds for stopping or reducing child support. In fact, there are many cases of fathers deliberately losing their jobs or reducing their income to reduce their child support obligations. Therefore, the court will require the father to prove that the loss or reduction of income was not caused by him.
Is a pension subject to equitable distribution?
If the pension was earned during the marriage. The rule the court uses to divide a pension is (years in the marriage) divided by (years in the pension). This number is then, generally divided by 50 percent. For example, assume a ten year marriage, and twenty years in the pension. Division of the pension would look like this: (10/20) *.5 = 0.25. The spouse’s share would be twenty five percent of the pension.
I’m in the Military is there any special about military divorces?
Divorces are governed by the law of the state. But, there are special issues and concerns particular to the military. Click on the button on the sidebar for an article on this topic.
My spouse acquired a degree during the marriage, is that marital property?
Yes and No. If the divorce is filed before January 25, 2016 then marital property will include degrees and licenses. For example, if the medical degree and license are acquired during marriage they are subject to equitable distribution.
For divorces filed on or after January 25, 2016 the court will not consider a license, degree, celebrity goodwill or any other career enhancement as marital property. But, if the court can consider “direct or indirect” contributions to the acquisition of those properties. This is a brand new law, so, I’ll be honest, I have no idea what a “direct or indirect” contribution is. And probably neither do the other attorneys out there. We’ll have to wait to see what the judges say.