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It may be surprising to some that per capita, divorce in New York City is low in comparison to other major metropolitan areas. That may be small comfort to you, however, if you are the one who is in the midst of a divorce.
In any state which requires grounds for divorce, there is a good chance that the divorce can become contentious. Even the terms to describe the spouses (one is plaintiff and the other the defendant) suggest opposition rather than cooperation.
If you are considering filing for divorce, or have been asked for a divorce, obtaining an experienced New York City divorce attorney may be a wise idea.
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Although the plaintiff who requests the divorce may wish that it happens quickly, there are steps which must be taken in order, each with their own deadlines. This is particularly true when the divorce is contested. The steps in a contested divorce include:
- Request for Judicial Intervention (RJI) filed no later than 45 days from service of the summons
- Statement of Net Worth must be exchanged and filed no later than 10 days prior to the preliminary conference
- Preliminary conference must be held within 45 days of judicial assignment (RJI filing date)
- Compliance conference may be scheduled, depending upon the court
- Discovery completed within six months of the preliminary conference
- Trial scheduled no later than six months from the date of the preliminary conference
Even though a high-profile celebrity divorce can occur in days, a contested divorce can easily take nine months to complete.
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One of the incredible unifying experiences for a married couple is when they become parents. When the parents divorce, however, issues related to the children can become the most emotionally devastating and divisive. One of the advantages of having a skilled and experienced attorney by your side is that he or she can help you navigate the emotional waters of child custody determinations.
There are two types of child custody: legal custody and physical custody. Legal custody is the ability to make decisions about the child’s upbringing, including religion, schooling and medical issues. Physical custody is the ability to be the child’s caretaker in terms of living arrangements.
In New York City, as in the rest of New York, the court prefers joint child custody, although it will make any child custody determinations according to what is in the child’s best interest.
Parenting Plans Or Visitation
Whether the physical custody is joint or solely one parent’s, there is typically a schedule for parenting time. In the case of joint physical custody, the child may switch homes every other week and every other holiday could be spent with each parent.
When sole physical custody is awarded, the noncustodial parent is granted visitation rights. A typical arrangement is that every other weekend is spent with the noncustodial parent, plus some holidays and vacation time.
When a couple with a child divorces, they are separating their lives, and also the lives of the extended families. In many instances the grandparents of either spouse are given access to the grandchildren after the divorce on an informal basis. In some cases, however, the grandparents may need to go to court to gain visitation privileges.
Instances where a grandparent or other immediate relative (aunt or uncle) may be granted vitiation privileges are when:
- The parent is deceased
- The grandparent already has a substantial relationship with the grandchild or children
In all cases the court will make any decision according to the best interests of the child or children.
Child support is assumed to be a responsibility of both parents. It is calculated based on the net income of each parent. To do so, the individual net incomes are combined and then multiplied by a fixed percentage per child. The percentages of total net income are:
- 17 percent for one child
- 25 percent for two children
- 29 percent for three children
- 31 percent for four children
- Minimum 35 percent for five or more children
The amount each parent will owe is the percentage amount divided according to the proportion of each parent’s net income to the combined parental net income.
For example, if one parent contributed 25 percent ($25,000) to a $100,000 income, he or she would be responsible for 17 percent of $100,000, times 25 percent, which is $4,250 per year or $354 per month. The parent earning $75,000 would be responsible for $12,750 annually or $1,062 per month.
There are several deductions and other factors which impact the child support calculation, so it is best to consult with an attorney for an estimate that reflects your specific circumstances.
In some instances, one spouse will want to prove or disprove paternity. In New York, if you are married at the time of the birth of a child, the court considers you both parents even if the father is not the biological parent. For those who are not married, paternity can be determined with DNA testing.
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Since July 24, 2011, same-sex marriage has been legal in the state of New York. Unfortunately as more same-sex couples marry, some of those marriages will end in divorce.
Many of the issues surrounding divorce are the same, although some are slightly different. For example, if the couple had a registered domestic partnership prior to the marriage, this can impact the determination of what is, or is not, court-considered community property.
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Marital property is considered communal property and belonging to each spouse equally. This includes assets as well as debts. Property that is not considered marital is anything that was owned prior to the marriage. These premarital assets are excluded from the division of property as long as they remained totally separate during the marriage.
Property that can be divided includes:
- All motor vehicles
- Collections (artwork for example)
- Household furnishings
- Liquid assets in checking or savings accounts
- Real estate property including the primary home, vacation property or real estate investments
- Retirement savings
- Stocks, bonds and other investments
One amenity in New York City that may be viewed as an asset is a lease on a rent-controlled or rent-regulated apartment. A 2012 ruling by the state appeals court determined that, “A leasehold interest in a rental apartment, even one subject to the rent control law, which is not expected to be converted into a form of ownership such as a cooperative, is neither marital nor separate property as defined by the Domestic Relations Law.”
Equitable Distribution Of Property
The court will divide martial property in a way that is equitable, although not necessarily equal. Some possessions, such as the family pet, are not divisible. Other items will be divided by the court in a way that is determined to be “fair and just.” The court considers several factors including:
- Health of both parties
- Hiding or attempting to hide assets
- Income and property of each party prior to marriage
- Number of years married
- Tax considerations
- The ability of each spouse to earn a future income
- The liquidity of the marital assets
- The need of a custodial parent to occupy the family home (child custody reasons)
- Wasteful spending by either spouse
Alimony Or Spousal Support
Many of the same considerations for the equitable division of property will also be used to determine whether or not alimony will be awarded to one spouse, and if it is awarded, what will be the amount awarded. Alimony can be either temporary or permanent, and a spouse could be awarded both.
Temporary alimony would be an amount to cover expenses during the divorce proceedings. This is sometimes necessary to continue making mortgage or rent payments, for example.
Permanent alimony can be awarded to one spouse depending on the length of the marriage and other factors. If permanent alimony is awarded, it ends only when:
- Either party dies
- A predetermined date is reached (age 65, for example)
- Remarriage of the spouse receiving alimony
Some marriages are simple to untangle from a financial perspective. For example, you could sell the condo, you and your spouse each get a car and the furniture and retirement savings are split 50/50.
In other instances it can be very complicated. A skilled divorce attorney is recommended when any of the following conditions exist:
- Small business ownership
- Multiple real estate holdings
- Overseas investments
- Partners in a Limited Liability Partnership
- Patents or other intellectual property
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There are many other issues related to divorce which you may wish to discuss with an attorney. Each person’s situation is slightly different, and what may work for you might not work for someone else.
When there are grounds for divorce, it can cause acrimony. An experienced attorney will offer you legal advice and can also act as an emotional breakfront to help block the waves of divorce from crashing onto your life and that of your children.
When choosing a New York City divorce lawyer, make certain that your attorney has experience representing clients similar to you in the borough in which you live. Although all judges are required to follow New York laws, there are inevitably subtle differences in each courtroom. Your attorney should be aware of any differences.
Look for an attorney with experience. Talk to your attorney before hiring him or her so you can feel comfortable with the attorney’s approach and communication style. Above all, make certain you obtain a divorce lawyer who concentrates his or her legal practice on family law in general and divorce law in particular.
For more information regarding how to file for divorce in New York city, fill out the free divorce case review form and a local attorney will be in contact with you to schedule an appointment and talk about your case and all the different options available to you.