A Complete Guide to Divorce in New York State
The process of obtaining a divorce is often a complicated process. But it does not need to be so. In order to simplify and speed up this process, the Law Office of Jean Mahserjian offers an array of online flat fee services. These include conversion divorce, mediated divorce, separation agreement and divorce, and separation agreement only. With a clearly listed flat fee and no hidden costs, these services may be availed here. If you meet the following conditions, you are a great candidate for these unique online services.
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- You and your spouse have either a Separation Agreement, or a Mediated Agreement, or an agreement that you worked out between the two of you. In regard to all of these types of agreements, you and your spouse must be in agreement on grounds for divorce and custody and child support and spousal support and the division of property. This site contains NY Law Pages on all of the above issues. Please review those pages, and other informational if needed, to ensure that you are comfortable with the agreement that you want us to memorialize. There are links to our NY Law Pages on the top of each page on our Uncontested Divorce Site.
- You understand that our Flat Fee services will not include any negotiation regarding the division of any qualified or other pension plan. The Flat Fee service also does not include our preparation of any Order necessary to divide your qualified or other pension plan. For information on the division of qualified or other pension plans, please see our Pension Page. Our office can and will provide a referral to a qualified Certified Divorce Planner who can assist with the division of a qualified or other pension plan if you need that assistance.
- Either you or your spouse are a resident of the State of New York. There are residency requirements to obtaining a divorce in New York State.
How We Help
When you use this very unique site, you are retaining the services of Jean M. Mahserjian, Esq., P.C., a New York Law Firm. The online divorce service provided by our office is complete and will take you from the point where you and your spouse have entered into an agreement to the final filing of your divorce papers. This process will be supervised by a firm attorney.
Only the spouse filling out our forms and contacting our office will be retaining our office. While it may be ethically permissible in some instances for an attorney to represent both spouses involved in a divorce, our firm is not comfortable doing so and does not do so. We believe that couples are best served by having individual Attorneys. Each spouse in a divorce has different interests to be served and different rights, even in the friendliest of divorces. Each should have their own New York Divorce Attorney.
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- We undertake all of the work necessary so that you will obtain an uncontested NY divorce.
- We will prepare your paperwork with terms outlined by you.
- We will provide legal advice regarding your rights and obligations under New York Law.
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- We will obtain all required signatures, and properly serve your spouse.
- We will properly file all of your papers and obtain your judgment of divorce.
- We will charge one flat fee to complete ALL of your work and obtain your divorce.
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- We maintain attorney client confidentiality, both online and off.
- We will provide you with a step by step online guide. You fill in the blanks and answer the questions, and we do the rest.
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- We will contact you as soon as you have retained our firm.
- We will make sure that you have our assistance throughout the process.
- We will represent you; you may telephone or email our office during all business hours.
The following sections are meant to educate you and your spouse and help you explore your options, understand them fully and make subsequent decisions. Also included are the answers to some of the most frequently asked questions. The answers have been provided by the expert legal team of the finest divorce attorneys at Jean Mahserjian, Esq., P.c., a New York Law Firm.
Most individuals are unaware of the different steps every couple goes through in the process of obtaining a divorce. Celebrity divorces that are commonly popularized on television are not accurate depictions of the actual process. Usually, the chaos surrounding these cases is sensationalized in an effort to garner publicity.
The actual process of obtaining a divorce is a far less chaotic. There are some steps that couples typically take before they obtain a divorce. Most frequently, couples choose to file for a legal separation before they proceed with a divorce. Some couples reconcile with each other following the separation; others move forward with the divorce; yet others remain separated but legally married.
These are matters of the heart. They are not meant to follow a set formula. Some couples want to reconcile after a period of separation. Some couples want to remain married for personal reasons. Some others want to remain married because of certain benefits. In the following sections, you will learn about how the process of divorce seamlessly follows the process of separation, should a couple choose it.
When Your Separation Agreement Is Legally Binding
Typically, couples who no longer want to live with each other opt for a legal separation first. A separation is rather similar to a divorce, in that you and your spouse will have to negotiate child custody, a parenting schedule, child support, spousal maintenance and the division of marital property. There are a plethora of reasons why couples might choose to legally separate instead of filing for divorce. Religious reasons that oppose divorce, hope for reconciliation after time spent apart, healthcare, insurance and tax benefits, ineligibility to file for divorce under residency requirements of the state.
The process of acquiring a legal separation can also appear to be less stressful for most people. However, it is important to understand that a separation is not legally binding till such time that the couple have taken certain steps.
In order for a separation agreement to be legally binding, it has to be signed by both parties. Both of their signatures have to be notarized and then the agreement has to be filed with the County Clerk’s office. However, merely filing the agreement does not mean that you are both legally separated. It does not make the agreement legally binding. What makes it legally binding is when both parties have signed the agreement, and when this document has been notarized.
How Long You Have to Wait to Get Divorced After Separation
The norm with most couples is to wait a period of time after the separation before proceeding with the divorce. However, if you are legally separated from your spouse, you can commence the divorce process right way.
Technically however, if your legal separation is now binding, you may move forward toward a divorce immediately. Conversely, like a lot of other couples, you may choose to never actually get a divorce. Every case is different. Every couple is different. The reasons for filing for a legal separation and/or a divorce vary from couple to couple. And each of them may have a variety of objectives.
Rather often, couples will decide not to get divorced because one spouse is receiving a benefit of some sort under the other spouse’s plan. These benefits include health, insurance, tax and pensions, to name a few. Once a divorce is final, those benefits are no longer available, so these couples may remain married forever.
Grounds for Divorce
To obtain a divorce, we must state a grounds for divorce in the divorce paperwork. There are still a number of fault-based grounds for divorce in the New York state law. However, for the overwhelming majority of clients who seek uncontested divorces, we file a no fault divorce. We simply state that the marriage is irretrievably broken and that there are irreconcilable differences between either party. This means that there is no fault to be attributed to either spouse. This is sufficient in order to obtain a divorce in New York state.
Getting an Uncontested Divorce Without an Agreement
The first thing you and your spouse must do in seeking an uncontested divorce is to agree upon all of the issues that need to be resolved before the court can issue a judgment of divorce. These issues typically include division of assets and debts, custody of your children, child support, and spousal maintenance. If you have not talked about those issues, it is time to start. You may choose to handle this on your own. Or you may choose to do so through mediation, or negotiation between attorneys. However, you and your spouse must be in agreement on all of these issues prior to obtaining an uncontested divorce. Unless you want to go to court, your agreement must be in writing as opposed to merely verbal. If your objective is to obtain an uncontested divorce based on papers alone and without a need to go to court, you will need a written agreement.
Agreement for an Uncontested Divorce without Assets
To finalize a judgment of divorce, the court bases its decision upon an agreement in which the parties have addressed certain specific issues, including division of assets and liabilities, custody, child support, and spousal maintenance. Because the court needs to be assured of those facts, you still need an agreement even if you do not have any marital assets. Without such an agreement, the court can render a judgment of divorce only if a hearing is held to address all of those issues. Or the parties have gone to court and actually stated on the record in front of the judge that they have no assets or liabilities and have resolved all of their other issues. The court can then render its decision.
Cohabiting During the Divorce Process
Couples often wonder if they may continue to share the same house with their spouse during the process of obtaining a divorce. It is rather common in fact, for couples to stick with their current living arrangements till the divorce is finalized. Many clients continue to reside in the marital residence with their spouse when they come to us.
Usually, such couples have valid and specific reasons to do so. Typically, couples do this when they are not ready to settle on a child custody agreement. Or perhaps because financially, it would be challenging for them to afford two separate residences pending the divorce.
Thus, while many couples do choose to live with each other till such time that their divorce has been finalized, it really depends on the unique details of that case. Our recommendations regarding what you should do pending the court’s final decision or a final negotiation of your agreement depend on the unique circumstances of each case.
Time to Wait on a Divorce Judgment for a Non-Responding Spouse
In New York State – absent the court’s permission – you must personally serve an individual with either a summons with notice or a summons with complaint. They then have 20 days to respond, exclusive of the day they are actually served. If your spouse has not responded when that deadline expires, you can proceed to obtain a judgment of divorce by default.
Getting a Divorce When You Cannot Locate Your Spouse
In the state of New York, you may obtain a divorce even if you cannot locate your spouse. In all probability, you will have to actually file for divorce and then make a motion to the court seeking permission to serve your spouse by some means other than personal service. This is usually by publication in a paper, meaning that legal notice is served via publication. Once this is complete and there is no response from your spouse, the court will entertain a motion for a judgment of divorce.
Getting an Uncontested Divorce When a Spouse Lives in a Different State
There are a number of uncontested divorce cases for individuals who reside in New York State but whose spouses do not. A New York court can take jurisdiction or authority over a divorce case in many ways, even if one spouse resides elsewhere. Once it is established that you are both in agreement and that one spouse does in fact reside in New York state, your lawyers can ensure that your paperwork is properly submitted to the court. This will enable you to obtain a divorce in New York State.
Obtaining an Uncontested Divorce When Your Child and Spouse Live in Another State
A challenge arises if there are children of the marriage who do not reside in New York State. This is because, if the children have lived in another state for more than six months, New York State does not have jurisdiction regarding custody of those children. That means any divorce agreement we enter into will not address the issue of custody. In other words, the parties cannot simply direct the New York court to assume jurisdiction regarding that custody issue if their child resides outside of New York and has done so for the past six months.
Obtaining a Judgment of Divorce as a Non-Resident
While you must meet a residency requirement in order to obtain a judgment of divorce, you do not need to be a current resident of New York. For example, if your marriage took place in New York and your spouse has resided here for a continuous period of at least one year prior to the divorce, the residency requirement is satisfied. Similarly, if your spouse has resided here for a continuous period of two years prior to the divorce – irrespective of where the marriage occurred – you will satisfy the residency requirement.
Getting an Uncontested Divorce Without Agreeing on Custody
Unless you and your spouse have agreed upon all of the significant issues that must be resolved prior to obtaining a divorce, you will not be able to obtain an uncontested divorce. This is because an uncontested implies that no contest remains in regard to any issue that needs to be resolved prior to obtaining the divorce. These issues include custody of children, child support, division of assets and debts, and spousal maintenance. Therefore, you cannot obtain a divorce without agreeing on custody.
Steps Needed to Take After Mediation
If you have completed mediation and arrived at a mediated agreement, it is a simple matter of merely translating that mediated agreement into a legally binding agreement. From there, you will obtain an uncontested divorce. You do need a legally binding agreement such as a separation agreement or opting out agreement. This can be drafted based on the terms you agreed upon in mediation.
When Your Divorce Will Be Finalized
Some couples are quite eager to move forward with the process of filing for divorce soon after their legal separation. They are ready to move on with their lives. If you and your spouse have an agreement on all the issues that need to be resolved to obtain a divorce, that agreement has to be presented in writing. Because New York State law requires this agreement to follow a specific format, your agreement must be in compliance with the law. A written agreement is especially required if you and your spouse want to obtain an uncontested divorce without papers and without having to go to court.
Following this, your judgment of divorce will be sent to your judge for signature. If he encounters any issues with the judgment, he will send it back to your attorney for corrections. If it does not require any further corrections, it will be signed and sent back to your attorney to be filed. Once your judgment of divorce is filed, you are legally divorced and you may safely say that your divorce has been finalized.
Understanding Spousal Maintenance
Spousal main is a term that covers what clients will refer to as alimony or spousal support. In New York state, the correct term is spousal maintenance. There are 2 types of spousal maintenance. Both are defined by statute. The first is temporary spousal maintenance. It is the spousal maintenance paid while an action for divorce is pending. We often do not address that issue in an uncontested divorce, because we generally do not have a situation where the parties are in different households and they are arguing about how the bills are going to be paid.
Permanent spousal maintenance is also based on a statute that defines for the court and attorneys what elements must be considered when spousal maintenance is calculated. Those elements are general; they are not specific; there is no formula. So, we have to look at the parties’ respective household budgets.
We usually consider one factor more than the others because it is a primary factor in the statute. That is standard of living. The objective of spousal maintenance in New York state is to maintain each spouse’s standard of living after divorce. This is not always an easy task because when you divide two households and one income, you really cannot maintain both parties’ standard of living.
This is why we also look at budget and determine what is possible. Spousal maintenance in New York state is what is called rehabilitative. It does not last forever. It is based on a term of years. It is designed to provide the spouse who earns less money an opportunity to get back on their feet, become reeducated or find a job that will allow them to support themselves.
Different Types of Spousal Maintenance
Spousal maintenance is in a state of flux in the State of New York. Currently, there are two statutes. One statute is formal and it applies to temporary spousal maintenance. It is paid prior to the judgment of divorce being entered. The other statute is a post-judgment permanent spousal maintenance statute.
It is important to note here that permanent does not mean forever. It is the statute that applies to maintenance after a judgment of divorce. The New York legislature has created and passed a new statute on spousal maintenance which will do away with both of the existing statutes. That statute has been passed by the Senate and the Assembly and is awaiting signature by Governor Cuomo. Once that statute is passed, spousal maintenance, both temporary and permanent, will be ordered pursuant to a formula.
Calculating Spousal Maintenance
The formula is relatively complex. There are a number of factors that have to be considered before the court determines which formula applies. The formula also contains a durational calculation. This means that we are no longer subject to the whims and predilections of different judges with regard to how they view spousal maintenance. We are about to have a comprehensive statute that will assist us in advising clients and addressing spousal maintenance in a comprehensive fashion in all cases, both on a temporary and on a permanent basis.
Possibility of Discharging Spousal Maintenance with Bankruptcy
The bankruptcy code is designed to relieve a person of indebtedness However, it is still concerned with that individual’s obligations to his or her family. Obligations such as maintenance – which is referred to as a domestic support obligation – will not be discharged in bankruptcy.
It should also be noted that the obligation need not be called maintenance. If it is in the form of financial support, it may be considered a domestic support obligation and not dischargeable. When entering into a separation or settlement agreement, keep in mind that you should include a provision that expressly prohibits an individual from discharging those obligations, notwithstanding what the bankruptcy code provides.
Division of Assets
When we are talking about the division of assets under New York law, we are talking about the division of both debts and assets that were accumulated during the marriage. The New York domestic relations law has an expansive definition of marital property and a less expansive definition of separate property. Separate property might be a bank account that you held prior to the marriage, that remained in your name during the marriage. Or you may have used that bank account to fund the purchase of a marital residence. If that is the case, you may be entitled to a receiving a contribution.
When we look at assets, we look at many different components of marital assets. These include, but are not restricted to, retirement accounts, IRAs, deferred compensation, real estate, brokerage accounts, life insurance cash value, jewelry, automobiles, personal property and vacation homes. All assets you have accumulated will be analyzed in the course of this process. To undertake this process, we will ask you for tax returns, bank account statements and any other documents that tell us the value of those assets.
When we undertake that process, it is sometimes important to hire outside experts. If you or your spouse have a business, we may not be able to determine the value of that asset without hiring an expert. And we do not want to guess as to the value of an asset that is important to the entire make-up of the marital estate.
We may need an appraiser to appraise real estate; we might need an estate expert to appraise other personal property assets. Your attorney will discuss all of these issues with you when they go over the list of assets and when they undertake an analysis of what constitutes your marital estate.
How to Divide a 401K
Today, it is rather common for a large portion of a working person’s assets to be held in retirement funds. More often, we see those funds held in deferred compensation plans such as 401Ks, 403Bs, profit sharing, and other types of cash accounts. Division of those accounts is dictated by either a “simple qualified domestic relations order” or a “domestic relations order,” depending upon the type of fund.
Assuming that each party will receive 50% of the marital share – which is common – this approach simply divides the marital portion of the account into two shares. The order goes to the plan, and the plan then segregates the funds and executes a rollover of the non-titled spouse’s funds, which generally go into a rollover IRA.
Dividing a Premarital Retirement Account
If you had a 401K or profit sharing plan prior to your marriage, the funds that were in that plan prior the marriage remain your separate funds. In other words, that money will not be divided in the divorce. Sometimes, issues may arise around what happened to the portion that was premarital versus what has gone into the plan since the marriage.
For example, if you had a sizeable sum invested in the plan, that sum may have appreciated in value. Then, if you put additional funds into your plan and those funds also appreciated, it may be necessary to hire an expert who can make the appropriate calculations and help determine what portion of the plan remains separate property and what portion is considered marital. Those experts can calculate specific amounts and furnish hard and fast totals that will assist in properly – and fairly – dividing your plan.
Finding Hidden Money in a Business
Today’s access to electronic records – and records in general – make it very difficult to hide money. It can be done, but it is difficult. For example, we sometimes find money hidden in business accounts where the business’ cash accounts continue to accrue money that is not paid to the business owner. These retained accounts sometimes grow to unreasonable levels – and then the spouse who owns the business says, “Let’s divide the business assets. I’ll give you 20%.” This means the non-titled spouse receives 20% of that cash – or whatever percentage is named – instead of the 50% they might have received if those funds had been paid out and properly placed into another marital account, such as a checking or savings account.
Getting a Share of Your Spouse’s Business
If either spouse owns a business, the proper way to determine the value of that business is to retain an expert who can calculate its value. Once the business is valued, the parties will negotiate – or the court will order – the non-titled spouse’s share. That share can range from 20% to 50%, and many factors impact a court’s decision – or a party’s negotiating position. Regardless of the amount, a specific mandate will be entered setting forth how the spouse who is not titled to the business is to be paid. If the payment is to be made over time, it may include an interest component.
Handling a Mutually Shared Business
In most instances, when we deal with a business in which both parties work, it is a business one of the parties started; or one party has more of a vested interest in maintaining the business. Depending upon the type of work done, the more interested party may be more of a principal in the business. In that case, it will be natural for that party to retain the business.
In some cases, however, the parties may have started the business together, and that presents a significant challenge. In some cases, the parties are able to continue working together, and can remain partners. It is not always advisable, but it can work because success in such a partnership depends upon the parties themselves, and the level of their acrimony or cooperation. After a high-conflict divorce, however, it will be impossible for both parties to continue running that business.
Handling Two Pensions When Both Parties are Unsure When They Will Retire
There are many cases in which a client and the soon-to-be ex-spouse were close in age and each had a defined benefit pension plan that would pay a monthly benefit upon retirement. This situation can cause difficulty for the first spouse who retires because, at that time, their retirement income could conceivably be reduced by half – with the other half of the retiree’s pension going to the other spouse. If that other spouse has not retired – and does not retire – the spouse who did retire will not receive their share of the other’s retirement.
This problem can be addressed in any one of a number of ways. First, a separate interest pension option may be available to ensure that, when they elect to retire, each party receives their share of each pension. Another successful approach – if the two pensions are equivalent in value – is for each party to simply waive their right to the other’s pension. If the pensions are not equivalent in value, an expert can be enlisted to assist in valuing both pensions and guiding the parties in dividing them so that neither party is at a disadvantage if the other party elects to retire later.
If You are the Owner of All Assets in a Default Judgment Divorce
If your spouse does not respond to your action for divorce, you will obtain a default judgment of divorce. However, that does not necessarily mean that you will retain all of the marital assets. That decision depends upon your specific circumstances. If you and your spouse have been separated for a period of years and you do not know where they are – and you have lived separate economic lives – you may retain most or all of your assets. On the other hand, if your spouse – to whom you have been married for a number of years – simply has not responded to the service of your papers and you have, for example, a pension plan, it is more likely that the court will order such assets to be divided.
Sharing the 401K if Your Spouse Dies
When dividing a defined contribution plan – such as a 401K, 403B, or other money account – the death of the titled spouse should not impact the rights of the non-titled spouse. We usually have an agreement that provides for the non-titled spouse to remain a beneficiary for their share of that fund until the date of division. At that time, another order provides for transfer of their share to them and out of the plan. Death of the titled spouse shouldn’t impact those rights.
Sharing the Pension if Your Spouse Dies
When dividing a defined benefit pension plan, or a pension that provides a monthly payment, it is important to consider all of the options available to both parties and ensure that they are protected in the event the plan’s titled party dies. We address issues such as what happens if the titled spouse dies before electing the pension, and what happens if they die after electing their pension. By setting up a separate interest pension plan, we render that a non-issue.
Each spouse has his or her separate interest in the pension, and neither one’s rights will be affected by the death of the other. In the case of a shared interest pension plan, however, it is important to ensure that the non-participant – or the spouse who is not titled to the plan – is protected by a survivor annuity and a pre-retirement survivor annuity. The amount they receive for a survivor annuity and/or pre-retirement survivor annuity depends upon the specific pension plan and what has been negotiated in the particular case.
Tax Consequences of Receiving Half of a Deferred Compensation Plan
You are entitled to receive your marital portion of a deferred compensation plan – loosely known as either an IRA or a 401K – and no tax consequences are attached to its actual distribution pursuant to your divorce. That’s because it’s a transfer incident to the divorce. You’re receiving that money as the qualified moneys they are, so it comes to you in the form of an IRA or 401K – whatever that deferred compensation plan may be. There are, however, tax consequences for early withdrawal, including both tax consequences and penalties. That occurs after you receive your distribution, and it’s a choice you will make, so I would advise you to speak with a tax advisor if you wish to do that.
When You Will Receive Your Share of Your Spouse’s Pension
Pensions are defined in two ways. One is called a shared pension plan, and the other is a separate interest pension plan. If it’s shared, the alternate payee – the party who is not titled to the plan – can receive their share only when their spouse actually retires. If there is a separate interest pension plan option, either party can receive their share on the date the participant is eligible to retire under the plan.
Whose Responsibility is it to Make Sure Retirement Accounts are Divided?
The party taking a deferred compensation or pension plan – the non-titled party – is responsible for drafting the order that will divide the pension plan or deferred compensation plan. Sometimes – as in cases that will require multiple orders – the cost can be significant. In such cases, we try to negotiate a proper allocation of the cost to divide these assets before an agreement is done. After all, these are marital assets, and neither party should bear the burden of dividing those assets alone.
When Your Spouse Is Refusing to Retire
Sometimes, a spouse who is titled to a pension plan elects not to retire – and, may do so in retaliation against the other spouse as a means of preventing them from receiving their share of the pension. Today, it is often true that a couple’s most significant assets are their homes and their retirement accounts – and that can create real problems.
If we anticipate an issue, we can go to the judge or include a mandate as to a retirement age in our agreement. In some cases, we have asked for a payment of spousal maintenance that either continues until the titled spouse elects retirement – or simply starts at the age when retirement should be elected – in lieu of the payment that would have been received on the pension plan.
Is a Personal Injury Settlement Considered Joint Marital Property?
In New York, a personal injury settlement is considered separate property, which means it is not marital and is not subject to equitable distribution. However, you want to make sure that you do not comingle those funds in an account held jointly with your spouse. If you do that, it is possible that the court will render that as marital property and it will be subject to equitable distribution.
Basic Child Support
In New York state, the non-custodial parent pays child support to the custodial parent. This issue gets complicated when parents are sharing custody equally. Under New York case law, the non-custodial parent is the one who earns more money. However, that does not mean that in every case of shared custody, there is a payment of child support going from one parent to the other.
In shared custody cases, which are often common in uncontested divorce cases, we oten have a shared expenses arrangement where the parents share all of the expenses the children incur. In New York state, under the Child Support Standards Act, child support is formulaic. It is based on the number of children in the household and the family’s income. However, the child support act is 10 pages of fine print. There are many nuances and grey areas. When your attorney addresses your case, they will explore all of these issues with you to determine what your child support should be.
Other Components of Child Support
There are mandatory add-ons to the basic child support in New York state. The mandatory add-ons are for health insurance, the cost of the premiums for the children, unreimbursed medical and dental reimbursements (that includes orthodontics), and daycare expenses for the children. Daycare expenses are those expenses necessary for a parent to work or to go to school.
There are some non-mandatory add-ons also. These are add-ons that are not required under the statute that parent soften agree upon. They may include things such as extra-curricular expenses, car insurance, and perhaps the cost of your children attending college.
Claiming Your Children on Your Tax Return If You Pay Child Support
If your spouse has primary custody of the children and you are paying full child support, it does not mean that you are able to claim the children as dependents on your tax returns. Under the Internal Revenue Code, the custodial parent has the right to claim the children as dependents.
This is an issue that is often negotiated when we’re negotiating an agreement. Depending upon the amount of support paid and the relative financial circumstances of the parties, we may agree on behalf of our client or recommend that there be a negotiation that the dependency exemptions be divided between the parties
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Child custody is one of the more difficult issues when it comes to divorce and separation. There must be a provision for the custody of children aged 18 years or younger. Children are not emancipated unless they are 21 years old in New York state. However, a court can only issue a custody order for children who are 18 years old or younger.
When your attorney addresses custody, they must resolve a number of questions and issues.
- Where will the children live?
- Will they have a primary residence?
- Or will they share two residences one with each parent?
- Who will be making decisions for the children?
- What will the regular parenting schedule be?
- Will there be different one for the weekdays and weekends?
- Will there be a different holiday schedule?
Standard Custodial Schedule for a Non-Custodial Parent
It is important for everyone to understand that family and matrimonial law is not one size fits all. While there are several schedules that have been glamorized for a non-custodial parent such as the alternate weekend schedule, schedules can run as many options as there are parents. It ultimately is about fashioning a schedule that practically meets the needs of your family while maintaining the children in a safe and stable environment.
Grandparents’ Rights if a Child is Being Withheld
A grandparent may petition to a court to ensure that they have visitation with their grandchild. The legislature reasoned that the grandparent-child relationship is significant to the development of a child. That being said, the court will take a two-step analysis in determining whether or not visitation should occur between a grandchild and a grandparent.
First, they will look at whether or not that grandparent has standing to seek the relief from the court. There are a number of factors that are considered including the ongoing and substantial relationship between the grandchild and the grandparent from birth until termination of the visitation. Secondly, the court will consider the best interest of the child.
Obtaining Custody of Your Niece or Nephew
It is usually very difficult for a non-parent to obtain custody of a child who is not their biological relation. That is because the laws of New York state give very clear preference to biological parents. Therefore, if you are looking to gain custody of a child who is not your biological child, including your niece, step-daughter, granddaughter, or any child you are not an immediate blood relative to, you would need to petition the family court for custody.
In that petition, you must allege extraordinary circumstances. Extraordinary circumstances are a very hard standard to meet and I recommend consulting and working with an attorney in filing this sort of a petition. The sorts of facts that can sometimes aid in this sort of argument are the abandonment of the biological parent of the child in question, the unfitness of the biological parent, persistent neglect of the child by the biological parent, or general unfitness.
Frequently Asked Questions
What do I do if my spouse is threatening to terminate health insurance?
If you have a concern that your spouse may be about to terminate health insurance benefits that cover you, you can file for divorce and prevent them from doing so. In New York State, once an action of divorce is commenced and the papers are served upon your spouse, temporary orders go into effect that prohibit certain behavior. One of the things that are prohibited is changing the health insurance policy.
Should I wait to move away before the baby is born if I am not married?
We’ve confronted a number of relocation custody cases where our client has not yet given birth to the child. They ask us, “Is it ok for me to leave the State of New York at this point in time?” The answer is yes. A court cannot assess or address a custody case or a relocation case until your child is born. If you think there is a likelihood that you may want to move to another state, the wise move then is to move before your child is born.
Can a court require me to pay college expenses?
A court is empowered to direct parents to contribute to the college expenses of the child. The court, in making a determination, will consider the parent’s educational backgrounds, the child’s academic aptitude, as well as the financial circumstances of the parties.
Am I entitled to social security benefits during divorce?
The short answer is yes, if you are a divorced spouse and you were married for a period of 10 years or more. There are certain other criteria that the Social Security Administration will review in determining your eligibility to take on your ex-spouse’s work record. I encourage you to visit our website for a link for the Social Security Administration’s page on divorced spouses. As to whether a court order is required, no it is not.
If I get divorced, will my retirement account be protected?
To the extent that you have acquired a retirement account prior to getting married, those funds are your separate property. However, once you get married, those funds could be subject to equitable distribution. It gets a little complicated. I would advise you to go see your family law attorney.
Can I limit college expenses to a SUNY school?
When parents are negotiating their settlement agreement, they of course, discuss their financial obligations to their children. This will include college expenses. Whether that child is young or old, it is something most parents will consider at the time of their divorce. Oftentimes parents are concerned, however, about the high cost of tuition, not knowing what college that child is going to enroll in. They have no clue as to what the actual expense is going to be or even what college that child is going to attend.
The parents will oftentimes limit what that financial contribution will be by setting a cap on the tuition and other expenses to be paid. You’ll see that as a cap on saying it will be no more than what it costs for that child to attend a SUNY level college, regardless of whether or not that child attends such a college. Parents will also define what the expenses are meaning tuition, room and board, or school fees. Parents may also require their child to exhaust their financial resources such as student loans, scholarships, and grants.
What happens if my spouse is not paying child support or spousal maintenance?
Speak to an attorney. They can definitely help you with this. What will happen is we will go to either Supreme Court or Family Court, file a violation petition, and enforce the terms of the agreement.
If my parents put my name on a bank account, can my spouse gain access to it if we divorce?
Your parent or sibling can always add your name to a bank account. Your spouse can try to make a claim to those funds, but the likelihood is that they will have no claim to the funds unless you have transferred marital funds into that account in an attempt to hide those funds. If it is an account that contains only your parent’s money or a sibling’s funds, then no, your spouse will not be able to make a claim for the funds in that account.
Should I open my own bank account if I am filing for divorce?
If you have filed for divorce or your spouse has and you are both still living in the same residence and still sharing bills and making the bill payments as you had before, it may still be a good idea for you to open your own bank account. The reason for that is any income that you earn after the date on which the action for divorce is commenced is considered your separate property.
If you put all that money into the joint bank account, you may be making a gift to your spouse of a portion or all of those paycheck funds. If you open your own bank account and deposit your paycheck into that account and just take out the money that you need for the bills, any excess money in your own bank account will remain your separate property when the divorce is finalized.
What if my ex-spouse is not following the orders of custody?
If your ex isn’t following your order of custody as issued by family court, you can apply in the family court to enforce that order, through a petition for enforcement. You can also seek remedy through the family court if your order of custody was made through a judgment of divorce, so long as the Supreme Court didn’t retain exclusive jurisdiction. In most cases – at least locally – the Supreme Court does not retain exclusive jurisdiction over custodial matters, so you can also apply for remedy in the family court.
To succeed on an enforcement petition, you must present a valid existing order of custody to the court and show that your ex failed to obey that order. The court has many remedies available to punish your ex for disobeying the order.
What if my ex-spouse is not granting permission to go on a trip?
If you plan a trip that requires a passport and your child’s other parent will not consent to the issuance of a passport – or refuses to give you the passport if they have it – you can ask the family court to address that issue. It is important to address these issues well in advance of your anticipated trip to ensure that you have the required documentation for wherever you plan to go. A court will rarely deny a parent’s request for a child’s passport in aid of a planned trip.
In what court do I file a custody petition?
In New York state, you may file your petition for custody in a county where either party resides.
Who pays for the children’s clothing?
Clients often ask if, as the non-custodial parent, they are obligated to pay for clothing. Conversely, if they’re the custodial parent, they want to know whether the non-custodial parent is obligated to pay for clothing. The reality is that – although child support is supposed to cover basic items such as shelter, clothing, and food – the inquiry on this issue doesn’t end there. If the parents have a shared custodial arrangement and the amount of child support being paid is reduced, the parent receiving a reduced amount of support might expect the other parent to pay for some clothing.
In a shared custodial arrangement with no child support being paid, we tend to outline all of the other things that would be paid for by both parents. If the non-custodial parent is making a very low basic support payment, it might be difficult for the custodial parent to pay for all of the child’s clothing. This is not an open and shut issue, but the judge cannot make an order directing a non-custodial parent to pay for clothing above and beyond child support. This is an issue you should explore with your attorney who will make sure you know your rights.
Is it possible for a father to be awarded custody?
New York State makes absolutely no presumption that the mother should be a child’s primary custodial parent, so it is entirely possible for a father to be awarded custody. In New York, the standard is always the best interest of the child or children and, if the court determines that those children’s interests will be best served in the custody of their father, the father can be – and often is – awarded custody.
If you are considering a divorce in NY State, contact our law office in Saratoga County. Jean Mahserjian and her team of Divorce Lawyers are experienced in handling all aspects of family law.