New York Divorce Lawyer

In order to start a New York divorce, one of the following criteria must be met:

Grounds For A New York Divorce

In order to obtain a New York Divorce, you must have a reason, or in legal jargon, a ground, that New York law recognizes as a valid basis for a New York Divorce. New York does not provide for no-fault divorces or divorces based on irreconcilable differences. The closest thing that New York does have is a divorce based upon a legal separation agreement. That is, a husband and wife have lived apart for at least a year pursuant to a written separation agreement. Living apart for at least a year without such a written agreement does not provide grounds for a New York Divorce. Also, the legal separation doesn’t begin until both parties of signed the separation agreement.

All other grounds for divorce in New York require that the spouse not at fault commence an action for divorce based upon the wrongful behavior of the other spouse.

The most common ground for a New York Divorce is abandonment. The spouse who left the marital residence must be gone for at least one year. There are two variations of abandonment. One variation is called “lock-out”. As the name implies, a lock-out occurs when the wrongdoer has locked the innocent spouse out of the marital home for at least the past year. The other variation is constructive abandonment, which occurs when the wrongdoer, without valid reason, has refused to have sexual relations with the other spouse.

Another widely used ground for a New York Divorce is inhuman treatment, which includes mental cruelty. The acts of in human treatment must have taken place during the marriage, and within the previous five year. The acts of inhuman treatment must have been so serious that it would be unsafe or improper for the innocent spouse to continue to live with the wrongdoer. Any type of physical abuse would qualify as an example of inhuman treatment. Other type of examples of inhuman treatment include unexplained absence from the marital residence overnight, gambling household money, spending household money on drugs, falsely accusing the innocent spouse of an affair, or verbal abuse. A long term marriage or a marriage with minor children would require a higher threshold of abuse over a short term marriage without children, however if there is physical abuse that would meet the threshold for inhuman treatment for any marriage.

Under New York Divorce law, adultery is a ground for divorce, but requirements of proof are strict. This ground is seldom used.

Another ground for Divorce in New York is prison for the past three years. With this ground, the party not in prison brings the action against the incarcerated spouse.

Custody and Visitation In New York

If you do not live with the other parent of your child, it is very important that you obtain an order from the court granting you custody of the child. Without such an order, the other parent can take the child and leave the state or country. An order granting you custody of the child will be of great assistance in getting the child back should the non-custodial parent remove the child from New York. In New York, both Family Court and Supreme Court have jurisdiction regarding issues of custody. If the parents of the child are not married, they usually go to Family Court for a determination of custody and or visitation. If the parties are married, these issues are usually decided by New York Supreme Court in a divorce action.

There are two aspects of custody: legal custody and physical custody. Legal custody gives the parent the right to make important decisions about the child. The parent with physical custody, also known as the custodial parent, has the right for the child to live with that parent.

One person may have both legal and physical custody. Another option is that both parties share legal custody, but only one has physical custody. Still another option is that the parties share both legal and physical custody; however this option is seldom used by the Court. The Court will usually decide that it’s in the best interest of the child to reside with only one of the parents.

With regard to visitation, the parent who does not have physical custody has the following options:

The Court usually takes the position that it’s in the best interest of the child to have contact with the non-custodial parent. If it is determined that there are issues of the child’s safety, supervised visitation may be granted by the Court. If an order of visitation is granted the custodial parent may not keep the non-custodial parent from visiting the child, even if the non-custodial parent has failed to pay child support. The issue of visitation and child support are two separate issues.

New York Child Support

New York law, the amount of child support paid by the parent who does not have physical custody, that is, the non-custodial parent is dictated by the Child Support Standards Act. This law provides a formula to calculate the amount of child support the non-custodial parent must pay. The Child Support Standards Act is also be used to calculate how much the non-custodial parent must pay for other items, such as health insurance, educational expenses and child care.

In order to calculate the amount of child support the non-custodial parent is to pay, first the gross income of each parent must be known. The gross income is usually taken from the most recent tax return. Gross income includes salary, as well as all other types of income. Income that is “off the books”, must also be included. If the “off the books” income is not conceded, the other party must prove its existence and amount in court so that it may be included.

After determining the gross income of both parents, the following items are then subtracted: New York City or Yonkers Income Tax, FICA Taxes (Social Security and Medicare), and Child Support or Spousal Maintenance (Alimony) paid pursuant to a court order. If the net income of both parents is over $80,000, the amount of child support is calculated based on only $80,000, although the court can and often does base the amount of child support upon the entire amount of net income.

The next step in the process of determining the amount of child support pursuant to the Child Support Standards Action is to multiply the net income by the appropriate percentage from the following table:

The next and last step to determine the amount of child support the non-custodial parent must pay is to take the resulting figure from the step above and prorate the amount between the parents. For example, if the non-custodial parent earns 70% of the combined income, the non-custodial parent’s child support obligation will be 70% of the amount calculated.

In addition to child support, the Child Support Standards Act determines the amount the non-custodial parent is obliged to pay toward medical expenses, educational expenses and reasonable child care expenses for the child or children so that the non-custodial parent can work or go to school. The non-custodial parent pays these expenses in proportion of income to that of the custodial parent. For example, if the non-custodial parent earns 75% of the combined net income, then the non-custodial parent pays 75% of these expenses.

The non-custodial parent is responsible for the support of the child until the child is emancipated. A child is considered a minor until he or she reaches the age of 21. However, a child may be considered emancipated if he or she is at least 18 years old and is married, in the military, or is living on his or own and working full time.

If the Court finds that the amount of child support provided under the Child Support Standards Act would be unjust or inappropriate, it can order a different amount. In the vast majority of cases, however, the courts have followed the formula set out in the Child Support Standards Act.

The parents of the child can “opt out” of the Child Support Standards Act by agreeing to a higher or lower amount of child support. In order to “opt out”, the parents must sign a written agreement that states that the parents have been advised of the provisions of the Child Support Standards Act, the amount of child support that would be required under the Child Support Standards Act, and the reasons why they have agreed to an amount other than the amount called for under the Child Support Standards Act. The language that is needed in this agreement is strict and is best prepared by an experienced attorney.

Either parent may go to Family Court at any time to have the amount of child support increased or decreased if a change of circumstances can be proved. However, the Court may deny a motion for a downward modification of child support by the non-custodial parent if the Court believes that the non-custodial parent is responsible for his or her decreased income. Thus, the non-custodial parent can’t escape paying child support by simply quitting his or her job.

Property Issues In New York

Regarding property in a divorce, equitable distribution is the law in New York. That is, the court will do what it deems to be fair in apportioning a couple’s property. Thus, even if a house is deeded to only one spouse, the other spouse may assert a claim to the house.

Most property acquired during the marriage--even pensions-- is subject to equitable distribution. There are several exceptions, such as an inheritance or money awarded in an accident case. However, even exempt property may be subject to equitable distribution if it has been placed in the names of both parties.

Spousal Support In New York

Today, alimony is known as "spousal support." Unlike child support, there is no set formula to calculate spousal support. Whether it is given depends upon the facts of the case, such as the incomes of the parties, the duration of the marriage, the health of the parties, the education of the parties, and whether there are young children. Spousal support is seldom granted for life. Generally, it is granted for a set period of time, the duration of which depends upon the facts of the case.

New York Annulment

A New York annulment is very much like a divorce. In both instances, the marriage ends. In a New York annulment, you receive a document that says that your marriage is annulled. In a New York divorce, you receive a document that says that you are divorced. There is no practical difference.

When an annulment is granted in New York, the marriage records remain on file. Many people believe that whether a marriage may be annulled depends upon the duration of the marriage. This is not completely true. Although an action for an annulment must be commenced within three years of the date of the marriage, there must also be a valid ground for the annulment. The most common ground in New York for an annulment is that of fraud. Obtaining an annulment upon the ground of fraud requires proof that the other party had tricked the innocent person into marriage. The fraud has to be of a significant nature. Examples of this type of fraud are a false assertion of pregnancy, a marriage for the sake of obtaining a green card, or a statement before marriage that the other party wanted to have children but, after marrying, refusing to have any.

An annulment can also be obtained in other circumstances. For example a marriage to someone who was already married to someone else or a marriage to a close family member, such as a brother or sister.

If you were married in a religious ceremony, you should consult with your clergyperson concerning obtaining a religious annulment. This procedure has nothing to do with a civil annulment. Even if you get a civil divorce you may still be able to obtain a religious annulment.

Legal Separation In New York

There are two ways to become legally separated in New York. The first and by far the most common way, is by both parties signing a legal separation agreement and living apart in accordance with that agreement. The Separation Agreement must meet certain requirements in form and language. All of the issues addressed in a divorce, such as custody, child support, spousal support, and distribution of assets must be addressed in the Legal Separation Agreement. The second and seldom used method of obtaining a legal separation is by obtaining an order of legal separation from the Court.

Although, it is not legally required, it is advisable to have the legal separation agreement filed with the County Clerk. After being legally separated for at least one year, either party may start a divorce action based upon the grounds of being legally separated. Although you don’t first need to be legally separated to file for a divorce, obtaining a divorce on the grounds of being legally separated for at least one year is the closest thing New York has to a “no-fault divorce”.

Pre-Nuptial and Post-Nuptial Agreements In New York

An agreement made prior to marriage concerning property, financial issues or children is called a Pre-Nuptial Agreement. If the agreement is made after marriage, it is called a Post-Nuptial Agreement. A Pre-Nuptial or Post-Nuptial Agreement can limit the right of one or both of the parties to the other party’s assets. In order to be valid, the Pre-Nuptial or Post-Nuptial Agreement must be fair and entered into after full disclosure of assets by both parties. Each party should have his or her own independent lawyer.

Orders of Protection, Paternity, and Other Family Court Matters In New York

Although parties are not required to have an attorney in Family Court, going to Family Court without an experienced attorney is inadvisable. Once a determination has been made, changing the decision is difficult, if not impossible.

If you are in danger from your spouse or other family member, you may go to Family Court for an order of protection. If the court agrees that there is a danger, it will issue a temporary order of protection and a summons with a follow-up hearing date. The summons must be served on the person from whom protection is being sought. Both parties must appear at the hearing. A determination will then be made whether the order of protection should be continued for a period of up to a year.

As for paternity, if a child is conceived or born during a marriage, the husband is presumed to be the father. If the husband believes that he is not the father, he must petition the court to allow blood tests. If a couple is not married and the father does not cooperate, the mother must go to Family Court to have the father declared the legal father of the child. Once the mother has the father found legally to be the father, she can legally get child support from the father. Likewise, if a couple is not married, and the mother refuses the father visitation, the father must go to Family Court to be declared the legal father of the child and obtain visitation rights.

Regarding child support, the court applies the Child Support Standards Act, which is described above.

Divorce, Annulments & Legal Separations - The Cost and How Long They Take

For a New York divorce where both parties sign for the divorce, without children and financial or property issues, our fee is $750. The court charges an additional fee of $343; accordingly the total price is $1,093. If your spouse refuses to sign for the divorce you may have him or her personally served with the papers. If he or she doesn't respond within the allowed time limit you may obtain the divorce by default. The divorce by default would cost an additional $100, accordingly a total of $1,193.

For a New York divorce where both parties sign for the divorce, with children and no financial or property issues (other than child support), our fee is $1,000. The court charges an additional fee of $343; accordingly the total price is $1,343.

For a New York divorce where both parties sign for the divorce, with one or both of the following: property, financial issues our fee is $1,250. There is no additional fee if you also have children. The court charges an additional fee of $378; accordingly the total price is $1,628.

An uncontested New York divorce usually takes from one to six months, the precise time depending upon the length of time needed by the court to process the papers. The average amount of time that the court takes is three months.

For a New York annulment on consent, where both parties sign the papers, our fee is $1,200. The court fee is an additional $343. Accordingly, the total price would be $1,543. A New York annulment on consent usually takes from one to six months, the precise time depending upon the length of time needed by the court to process the papers. The average amount of time that the court takes is three months.

For a New York Legal Separation Agreement, our fee is $750. The court fee is an additional $218. Accordingly, the total price is $918. You can be legally separated in as little as one day.

If your situation is not covered above or if your spouse is going to contest the divorce, we offer a free consultation in our office. During our consultation we will review your situation and provide you with your options. Our telephone number is (718) 625-0800.

Copyright © 2004-2008 by Jeffrey B. Peltz P.C.. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

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