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FAQ

Divorce FAQ

Therefore, it is likely that most, if not all, future divorce actions will be brought under this ground (No. 7 below), although all of the other remaining grounds are still available.

 

The grounds for divorce in New York pursuant to DRL Section 170 are: (1) cruel and inhuman treatment; (2) the abandonment of the Plaintiff by the Defendant for a period of one or more years; (3) the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage; (4) the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage; (5) living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment; (6) living separate and apart  pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement; (7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

 

No. 7 above is the ground for divorce that is closest to a no-fault ground in New York. What this means, essentially, is a divorce will be granted on that ground after the parties or the court have resolved the property, custody, child support, and spousal support issues and the attorney and expert-witness fees. This ground typically is not contested. When it is, the burden of proof is easier to meet than for the other grounds for divorce in New York. The irretrievable-breakdown ground can be met by a sworn statement, while the other grounds require that the Plaintiff provide evidence to prove the specific allegation before a final determination will be made on the other issues of the divorce.

Marital Property & Financial Assets FAQ

When a spouse is served with a summons for divorce, attached to the summons is a document titled “Notice of Automatic Orders.” This notice has the legal effect of a court order prohibiting a party from accessing any marital property and using it for any other purpose than is necessary in the ordinary course of business or meeting your day-to-day needs. Cleaning out a joint bank account for this reason would be considered a “dissipation of marital assets.” The party who removed these funds would be ordered to replace them and/or give the other party a credit as part of any final settlement. If getting the offending party to take the proper steps to rectify the loss required litigation, they would be responsible for the other party’s attorney fees.

 

If a spouse raids a joint bank account for extramarital purposes before a divorce action is begun …….this may be considered the wasteful dissipation of marital assets and the spouse may be responsible for putting this money or equivalent value back in the marital pot at divorce time. For example, if one spouse spends money on a paramour, such as jewelry or vacations prior to divorce, those funds would be a credit to the other spouse when they get divorced.

If it’s determined after a divorce has been completed that one spouse hid assets, the entire divorce can be reopened. This may also occur while the divorce is pending. In either scenario, the  offending party may be subject to a contempt charge and be responsible for attorney and other fees incurred to uncover the asset,  reopen the case,  and bring this information to the court’s attention.  Judges have many tools at their disposal to punish a party for contempt, including fines, attorney fees and even incarceration.

A financial windfall after a divorce action is separate property. However, in determining a spouse’s ability to pay support, these resources are relevant and must be disclosed.

 

Debts incurred after the divorce action are the separate responsibility of the spouse incurring the debt. This gets tricky when the person incurring the debt has used a joint credit card or line of credit. The non-responsible spouse must take all steps necessary to get their name removed from any liability for this debt. Simply saying “Oh, you pay the credit card balance until it’s paid off” is not a good answer. MasterCard and American Express don’t care what your divorce judgment says. If your name is on the account, they can legally go after you to collect, and failure to maintain the account properly will impact your credit.

New York is an equitable distribution state. Equitable does not mean equal or a 50-50 split. Generally, the law provides that marital property should be divided equitably or fairly. Typically, a divorce will involve the division of equity in real property, retirement accounts, bank accounts, vehicles, and household contents. The exact division will be different for each case, taking into consideration the parties’ goals and circumstances. Marital debt also must be equitably divided. In most cases, the interplay between the division of property and debt drives the resolution. An agreement reached between spouses is usually preferable over a decision by a judge after trial. If spouses are able to work together, they are usually more satisfied with the terms, which can incorporate details that a judge will not.

Property acquired after the spouses physically split, but are still married, and no divorce action has been commenced, is marital property. The court will take into consideration the specific facts of this scenario in dividing property acquired under these circumstances. The division is equitable, not equal. The court will start from the premise that this property is marital.

There are some common pitfalls that people may be unaware of that may change separate property into marital property. For example, if one spouse receives a personal-injury settlement and deposits the funds into a joint bank account with the other spouse, this separate property has become marital. The idea is that the receiving spouse has intentionally changed the ownership of separate property from separate to marital by depositing it in a joint account where both spouses are titleholders and have the legal ability to access all the funds in this joint account. This concept also applies to inheritance proceeds. For example, if one spouse inherits a parent’s home and decides to refinance the property to make improvements, and both spouses’ names are the new mortgage, and title is transferred into both names, the property has become marital.

Property that is not considered marital is identified as “separate property” by law. Any property owned prior to the marriage is separate property. Inheritance proceeds, in any form, such as real property, cash, stocks, and bonds, is separate property, whether it is received before or after the marriage. The settlement proceeds from a personal-injury matter are the separate property of the spouse receiving the funds. Property acquired after the commencement of the divorce action is separate property, unless marital property was used to obtain it.

Marital property is defined as all property acquired by either or both spouses from the date of marriage until the date of a separation agreement or commencement of a divorce action. The form of the title of any property is irrelevant. The law is based on the concept that marriage is an economic partnership, and tangible property should be equitably divided. There are some surprising applications of this rule. Gifts made between spouses are considered marital and not the separate property of the recipient. Lottery winnings are considered marital, particularly if the ticket was purchased with marital property. And by the way, your paycheck is marital property.

Spousal Support FAQ

An order of support or a judgment after divorce that incorporates a support terms is enforceable in family court. A party subject to a divorce decree can return to the Supreme Court that issued the judgment of divorce for enforcement. A written violation of support application or petition must be filed with the court. The support can be enforced by the court issuing a wage deduction order. The order will direct that support be deducted directly out of a paycheck, including additional sums for any past unpaid support. If support arrears accumulate to a certain point, a person’s driver’s license can be suspended, bank accounts seized and frozen and liens imposed against vehicles and real property.

Child Custody FAQ

If you and your spouse cannot reach an agreement on the custodial arrangement for your child, then custody can be determined through Family Court or as part of a divorce action. The court will make its custody decision by determining what specific terms are in the best interests of the child. The court will examine how each parent meets the child’s mental, emotional, psychological, medical, educational, and nutritional needs. Each case is decided based on its own unique set of facts and circumstances. Factors taken into consideration by the court include the following: the amount of time each parent spends with the child; attendance at parent-teacher conferences and doctor appointments; homework completion; bedtime routine; bathing; feeding;  meal preparation; and emotional closeness. In a majority of custody cases, there will be some type of shared decision making and physical custody.

You can modify a custody order in New York if you can establish that there has been a substantial change in circumstances since the last custody order was made. What is considered substantial is up to the court to decide. If you can show sufficient evidence of a substantial change in circumstances, then the court will review the new situation and make a modified custody order, applying the same standard as before: the best interests of the child.

Domestic violence is a factor that a judge can take into consideration in deciding a custody matter. If a child is harmed physically, mentally or psychologically by domestic violence, the offender could have extremely limited contact with the child going forward. Depending on the facts and circumstances, a court may order evaluations for mental health or substance abuse issues.  Information obtained in this process and the opinions of service providers may impact the custodial arrangements.  An order of protection will contain terms limiting behavior and contact between the parties and children. An order of protection may set forth a schedule of visitation, if necessary.

A judicial finding of spousal abuse has no impact on the terms of a support judgment or order.  Legally, they are two separate issues (there is an exception for very extreme cases). However, these two issues are very much intertwined in the lives of people who experience abuse. It is common in cases where spousal abuse has occurred, that support can be very difficult to enforce and collect.  It is legally recognized that an intentional failure to provide support is a form of abuse.

Child Support FAQ

In New York State, child support is determined by the Child Support Standards Act. the law sets forth formulas and factors the court may consider in determining support. To analyze your particular situation, go to childsupport.ny.gov and/or nycourts.gov.

 

Generally, the parent who has the majority of the custodial time is legally defined as the “custodial parent” and the person entitled to receive child support from the other parent. In New York, whoever has the majority of overnights with the child will be the primary custodial parent for child support purposes. If there is a shared custodial schedule, and the child spends 50 percent of his or her time in each household, the court will analyze each parent’s income. The parent with the greater income will be deemed the “non-custodial parent” and be ordered to pay support to the lower-income parent or “custodial parent.” Under this scenario, the court has the discretion to adjust child support to an amount less than the full application of the law due to the shared parenting time schedule.

Remarriage does not affect support orders or judgments. If there is a modification of support sought after remarriage, the new spouse’s income must be disclosed as income for the household. However, it is not used in the calculation of the parent’s support obligation. If one spouse remarries and the income of their household doubles, that does not mean the child support will increase. The new spouse (or step-parent) does not have a legal responsibility to support the child.

Remarriage could affect custody arrangements since the change in household composition  will impact the child. Every family has its own unique set of dynamics and circumstances. The addition of a step-parent and possibly step-children is a significant change for most families. Whether it is positive, negative or a combination of both depends on the family.

In custody matters, there is no legal authority to make a custody order once the child reaches the age of 18 years. In child support matters, parents are responsible to support their child until the age of 21 years. Child support can be extended beyond the age of 21 by agreement. For example, parents may choose to support a child until he or she reaches age 22 or completes a four-year college degree, or longer. In addition, a health insurance plan may allow a parent to keep their child insured until the age of 26. Terms pertaining to this issue can be negotiated and agreed to by the parties for the benefit of the child.

Copyright 2017, Joanne Monagan, family-law attorney and divorce mediator