When the decision has been made to divorce, there can be a tremendous amount of sadness and uncertainty. Whether you asked for the divorce or the choice to end the marriage was mutual, getting reliable legal information can aid in obtaining a favorable outcome. Understanding New York divorce laws can be beneficial and give you the opportunity to successfully plan for the future.
A divorce can be hard enough for the spouses involved but perhaps even more of a struggle for the children. This can be especially true for young children who can’t comprehend why mom and dad are not going to be living together anymore. Fortunately, it might bring some comfort to know that a family law judge will have the best interests of the children in mind when making decisions on all child-related matters.
In Long Island, New York, and elsewhere in the state, two forms of child custody are possible – legal and physical. The court prefers to grant legal and physical custody to both spouses because children benefit from the presence of each parent. However, in unhealthy home environments, such as when there is physical violence or illegal drug use by a parent, the court will deny custody.
The best scenario is one in which the parents can agree on a parenting plan, as it can save time and agony. A judge can intervene and rule on the custody arrangement that will best serve the children. Additionally, the court can require parents to partake in child custody mediation to help resolve disputes and reach settlements.
Child support, determined through use of a mathematical formula, is based on the combined gross income of the parents. The court will also consider the amount of parenting time that has been awarded to each spouse as well as the number of children in the marriage. The types of income that are used to calculate child support payments are:
- Wages, tips, fellowships and stipends
- Investments, stocks and bonds
- Disability, insurance and social security benefits
- Unemployment and veterans benefits
Dividing marital property can become a contentious element in a divorce. In Long Island, debts and assets acquired during the marriage belong to both spouses. Each party will be assigned an appropriate amount of the property and the debt. A judge has discretion to make rulings on marital property and will consider many factors, such as the length of the marriage and the income of each person..
Division Of Property
Property is classified in two categories – separate and marital. Couples are advised to make a list of property; if they can agree on what is marital and separate, the process should be smoother. If spouses disagree on property matters, a judge will make the decision.
An item defined as separate property, such as an inheritance or a birthday gift, is not generally divided upon the dissolution of marriage. Items often considered marital in nature include retirement accounts, real estate, cars and pensions. Debt that was accumulated in the marriage and typically dispersed between spouses includes credit card balances, car loans and other liabilities.
In New York, most divorces are filed using no-fault guidelines. However, spouses may also use fault grounds, such as cruel treatment or abandonment, to end a marriage. As alternatives to divorce, couples can get legally separated, file an annulment and mediate to end a marriage.
When you legally separate from a spouse, many issues are addressed – such as visitation, child custody and property allocation. However, in a legal separation, the marriage is not dissolved and you can’t remarry until you take further legal steps. A legal separation can give couples the option of reconciling the marriage. Other spouses legally separate for financial or religious purposes.
In New York, by legally separating and living apart for at least a year, couples are eligible to then file for a no-fault divorce. In order to file for a legal separation, at least one of the parties needs to have lived in the state for one year prior to the petition.
The court treats a marriage that has been annulled as though it never legally occurred. In New York, there are five common grounds available in obtaining an annulment:
- A spouse was under the age of 18 when he or she married.
- A spouse was mentally ill or incapacitated.
- A spouse was forced into marriage or defrauded.
- A spouse suffered an incurable mental disorder or insanity lasting at least five years.
- A spouse is physically incapacitated and unable to have sexual intercourse.
In order to be successful in obtaining an annulment, the court needs to be satisfied with the evidence that shows one of these conditions existed. It is wise to enlist the help of an experienced divorce attorney when seeking an annulment.
In alternative dispute resolution (ADR) you and your spouse will meet with a neutral third party who can help with the resolution of child custody and property division, among other issues. This process can be far more cost-effective and saves time when compared to regular adversarial representation. However, ADR is only effective for couples that can cooperate with one another and volunteer financial information. ADR is not recommended for those with a history of emotional or physical abuse.
Some of the advantages of ADR include:
- Communication that is effective between the two spouses
- A wide range of solutions to resolve differences
- An outcome that is determined by the spouses involved
The divorce process can be overwhelming due to the many options that are available. When you enlist the skills of a Long Island divorce attorney, you have access to reliable legal information that can make a difference in your future. Whether there is a family business involved in the equation or you are worried about sorting through child custody matters, an experienced lawyer can help you understand what avenues will be right for you and your family.
When hiring an attorney, it is typically a wise decision to select one with experience helping families in Long Island, New York, who has a concentration in divorce cases, rather than a general practice lawyer. A divorce is a tumultuous time for the whole family and, because of this, it’s important to choose a legal professional that will take the time to understand your wishes and goals.
To begin the divorce process or learn more about the legal steps, fill out the divorce case review form and a local attorney will be in contact with you as soon as possible.