Frequently Asked Questions (FAQs):
If you are considering divorce in New York State, you likely have many questions about property division, child custody, and spousal support. Below are answers to common questions about divorce under New York law.
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In New York, all property acquired during the marriage and before the commencement of a matrimonial action or the execution of an agreement, whichever is earlier, is presumed to be marital property regardless of how title to the asset is held. New York does not automatically require equal division of marital assets. We are an “Equitable Distribution” state, and a Court will consider many different factors to determine an appropriate division of assets.
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You will be able to keep any assets which you can prove are your separate property. Property acquired before the marriage, gifts and inheritances from someone other than your spouse, and compensation for personal injuries (except lost wages or medical bills) are generally considered separate property in New York. However, it is important that these funds have been kept separate and not commingled with any marital funds. In some cases, even if funds have been commingled, it is still possible to prove the property is separate through tracing.
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In New York, the lower earning spouse may be entitled to spousal maintenance from the higher earning spouse after a divorce. There is a formula to determine the presumptive amount of maintenance, but a Court also has discretion to deviate from that presumptive amount based on a variety of different factors. There is also an advisory schedule to determine how long maintenance must be paid but it is advisory only and a Court has the authority to deviate from the schedule.
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Unless and until a Court decides otherwise or the parties agree otherwise, both parents have equal custodial rights. Neither the father nor the mother has a superior right to custody. Unless a Court determines that spending time with a parent is not in the best interests of the children, the Court will typically award the non-custodial parent parenting time with the children of the marriage. The actual schedule of parenting time will depend upon many facts and circumstances. If a Court orders parenting time or the parties agree to parenting time, you will be able to enforce that Order or agreement if your parenting time is being withheld.
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A separation agreement allows spouses to live separately and apart without immediately pursuing divorce. A separation agreement is a formal, legally binding and enforceable contract that outlines the rights and responsibilities of each spouse. These agreements allow spouses to live separately while remaining legally married.
A divorce legally terminates the marriage. Each spouse has the right to remarry and file separate tax returns. The spouses also will no longer share health insurance or have spousal election privileges in the event of the death of either spouse.
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The length of a divorce case is subject to many factors such as the Court’s schedule, the parties’ ability to reach agreements, the complexity of the parties’ financial situation, whether there are minor children of the marriage, if there are any separate property claims, and much more.
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Not necessarily. If the parties can agree to a resolution of all issues, they will never have to go to Court. However, if the parties cannot agree to a settlement of one or more issues, they will likely have to appear before a Judge several times and possibly have a trial to obtain a resolution.
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New York laws are protective of the non-monied spouse in a divorce action. There are laws that grant the Court the authority to direct the monied spouse to contribute to the counsel fees of the non-monied spouse. The amount your spouse may have to pay for your legal fees is dependent on the facts and circumstances of your case.
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In New York, parents have a legal obligation to support their children until the age of 21. The Courts use a formula based on the parties’ incomes and the number of children to determine the amount of child support, but a Court has discretion to deviate from the presumptive amount determined by the formula.
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Generally speaking, yes. There are some circumstances when a Court will order a spouse to leave the house such as when he or she has already established another residence or in the event of domestic violence.
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