Ask a Lawyer: Frequently Asked Questions About Divorce, Custodial Rights, Child Support and Maintenance/ Alimony in New York
Ask a Lawyer: Frequently Asked Questions About Divorce, Custodial Rights, Child Support and Maintenance/ Alimony in New York
Divorce and Family law can be a complex subject to tackle. Every legal case is unique, and as such, only a skilled divorce and family law attorney will be able to answer your questions exactly and in detail. That being said a few questions tend to arise frequently. In this guide, we will go over some of them in-depth.
At Ketover & Associates, LLC my staff and I strive to attain the best possible outcomes for every case we take on, regardless of your circumstances. We understand that topics like child custody, separation, and divorce can be difficult to discuss. With years of divorce and family law experience along with hundreds of successful case outcomes, we are here to help you navigate the complexities of your unique situation from start to finish. In the meantime, this comprehensive guide may offer you some answers to frequently asked questions about custodial rights, child support, spousal maintenance, and more.
Frequently Asked Questions About Child Custody in New York
Learning as much as you can about what you may face throughout your case can be helpful. Here are a few frequently asked questions about how parents' rights apply to custodial cases in New York regardless of whether you live on Long Island, in Queens, Brooklyn, Manhattan or even Westchester County or Orange County. The law throughout New York is the same.
What is the Best Interests Standard?
All considerations involving the child or children of a relationship ending are viewed through the prism of the Best Interests Standard. What that means is the overriding concern and focus of the court in custody and visitation proceedings is what is best for the child or children involved. In these custodial and visitation cases, the courts are asked to take the future of the children into account by examining past circumstances to determine which parent involved in a case will be able to offer the best possible environment for the child or children in question.
In order to help the court determine what is in the children’s best interests testimony from the parents and even independent witnesses, psychological experts, and other factors may be examined to ascertain which parent offers the healthiest and most advantageous living situation. Because the Best Interests Standard is subject to so many changing factors, having a skilled and experienced attorney is the best way to ensure a good outcome for your potential custodial goals.
It is important to know that the often times the court will appoint an attorney for the child to represent the best interests of the children. This attorney is often paid by the parties in proportion to their relative incomes, or in some cases may be paid for by the state. However, the attorney for the child is paid they have only one directive: achieving the best and healthiest situation for their client.
How is the primary caretaker identified in New York?
Identifying the primary care giver may involve various factors and issues. When it comes to weighing out what will be best for minor children, the "primary caretaker" or “caregiver” will usually be identified. This is the adult person in the legal case who has dedicated the largest amount of time looking after and caring for the children. In cases involving younger children, the primary caretaker is strongly considered when determining the care standard. This is because removing that person from the day-to-day lives and routines of a child or children may cause psychological damage and unnecessary long-term emotional trauma.
Can custody terms be included in a Separation Agreement?
In some situations, parents will choose to separate rather than to divorce. This can happen for various reasons. No matter what the circumstances surrounding a separation are, the New York Domestic Relations Law will impact most of the guidelines surrounding any minor child custodial arrangement. The New York Domestic Relations Law determines the guidelines surrounding separation, prenuptial, and postnuptial agreements. This can affect a range of things related to child custody as well as child support and visitation. Nevertheless, parties to a separation agreement can agree to wide array of settlement terms and conditions regarding custody.
However, these terms can not be enforced unless they comply with the best interests of the minor children involved as discussed in New York Domestic Relations Law §240 and other sections of the DRL (Domestic Relations Law). In these situations, custodial arrangements that have been negotiated and drafted by attorneys familiar with divorce and family law are more likely to be enforced than any other postnuptial or prenuptial arrangements. This is because the very latest standards and laws regarding child custody and visitation will be considered and included in the agreement. As an aside, it should be noted that parents who gain primary physical custody in a separation agreement are more likely to retain that same status if the termination of your marriage ultimately follows. While this is not always the case, it's an important factor to consider when contemplating legal separation.
When does joint custody apply?
At the outset it must be stated that in New York there are two types of joint custody: true joint custody and a hybrid joint custody. True joint custody means that both parents physically reside with the child or children evenly and share even authority in decision making. The hybrid form of joint custody gives one parent primary physical custody (meaning the child primarily lives with that parent) but both parents share equal decision-making authority. True joint custody can be difficult to work out logistically and could be confusing for the child and must be considered by the parties. But for those who can work it out true joint custody can be very beneficial. The hybrid version of joint custody is by far the most common in New York divorce, child custody or family law cases. Whether true joint custody or the hybrid version one thing is true: if parents cannot get along well enough to make decisions together peacefully, a joint arrangement may not be in the best interests of the children and seeking sole custody may be the only option for you.
Are there different kinds of custodial arrangements?
There are two main terms that you will want to understand when discussing custodial guardianship in the Long Island area. These are Legal Custodial Rights and Physical Custodial Rights.
• Legal Custody
This will determine who can make important decisions in the lives of children. Examples of this are which religion they will follow, what medical decisions will be made on their behalf and other similar decisions that will impact their upbringing.
• Physical/Residential Custody
These are the custodial rights that will determine where a child will live and who they will live with primarily. The parent that children live with most of the time is known as the primary custodial guardian. The other parents will often have visitation of some kind.
There are various custodial arrangements and configurations available in New York. Usually, the two most important custodial factors to be determined are: where a child will live and who will be allowed to make decisions on behalf of the child. After that, visitation is the biggest factor that will need to be determined. These key elements will be factored into your custodial agreement to some extent.
Custodial arrangements can be configured in many ways. Usually, if the parents cannot agree on a form of custody, the court will have to decide and ultimately will determine which parent should have sole custody of the minor children. Alternatively, if the parents can communicate productively and work together in raising their children a joint custodial arrangement is potentially possible. However, in most cases, this can take place only when both parents agree to an arrangement of this kind.
The biological maternal and paternal relationship of parents to children will also play a role in any custodial arrangements. For example, children who are not biologically related to one of the parents will often remain with the parent that they are biologically related to. These arrangements can vary greatly, and speaking with a skilled attorney is the easiest way to determine which type of custodial arrangements are most likely available in your situation.
How much child support will I have to pay?
The State of New York has made calculating child support a matter of math. A percentage of a family’s income has been legislatively determined to be what is necessary to support a child. For one child it is 25%, two is 25%, three is 29% and so on.
The way this is calculated is that both parental incomes are combined, certain statutory deductions are allowed but not as many as you would think. For instance you cannot reduce your income by the State and Federal taxes that come out of your paycheck. These numbers are based on your gross income, less FICA deductions, that’s all.
Once both parents’ incomes are combined, the statutory percentage for the number of children is applied. After that each parent is responsible for their proportional share of that number. The non-physical custodial parent pays the physical custodial parent their share of the child support amount. Usually in weekly or monthly installments.
What is the serving of process and how does serving work?
Serving your spouse means that you are legally notifying them of your intent to dissolve your marriage. The service of process requires that the one party in a divorce is personally served in one of two ways. They must be served with a Summons with Notice or a Summons and Verified Complaint. To have your spouse served in any other format, you will first need the expressed permission of the court.
If you can not locate your spouse to serve them, your lawyer will be able to help you apply for permission to serve them in another way. Your lawyer can do this by filling a motion arguing the facts and the law with the court in the county where you were married asking the court for special permission. If you were married on Long Island, this will be in either Nassau or Suffolk County. Our office has experienced process serving professionals working in these areas to help you locate and serve your spouse. And if they cannot be found we know how to secure the court’s permission to serve them a different way so you can still move forward with your divorce.
Parents working with an experienced attorney like Ketover & Associates, LLC will be able to help you decide what legal strategy will be most comfortable for you with the best overall outcome. Your lawyer will be tasked with ensuring that the papers being served are delivered properly. This will help to protect you from serving your spouse incorrectly or potentially hurting or delaying your case.
Common Questions About Maintenance/Alimony in New York
When you're in the middle of a divorce, your financial life may be significantly impacted. We understand that this process can be stressful, jarring, and evoke strong emotions. Retaining a skilled legal counselor may be one of the best ways to protect your assets and income under trying circumstances such as these. Additionally, arming yourself legally may help to protect your financial status and assets better in the long-term. Let's take a look at a few questions about what New York calls “Equitable Distribution” (division of assets) and how things work in court when two individuals decide to dissolve their marriage.
Will I have to pay maintenance/alimony to my spouse?
Maintenance (or alimony as it once was called) is a term that generally refers to spousal payments which are usually made from the higher-income earner to the lesser-income earner. This financial support is there to help ensure that economically disadvantaged spouse is given a fair opportunity to have financial assistance while attempting to get re-trained or certified or to simply find a job that will ultimately lead to that spouse being financially self-supporting. All divorce cases are nuanced and differ slightly from each other, and whether or not you will need to make these payments, how much and how long will depend on various factors like you and your spouse's income levels, living arrangements, possibilities temporary legal separation, and more. Your attorney can walk you through what this process looks like in-depth.
How does spousal maintenance work in NY state?
Calculating spousal maintenance payments can be a complex process that your legal team will walk you through. Generally, the amount awarded will be based on a mathematical formula is used along with a multitude of other factors including:
• Whether the actions of one of the spouses prevented the other from obtaining financial gain
• Whether one spouse prevented the other from achieving a higher education directly
• The marital assets of both spouses
• The income of both parties combined versus separately
• Length of the marriage as a whole
• Age of both parties involved
• Ability of the payee to care for themselves outside of the marriage
This statute also allows the Court a "catch-everything" factor. This is anything else that the Court deems just or proper to consider. This means that when maintenance payments are considered, the court is allowed to inquire about certain factors pertaining to your marriage. These are usually factors that may apply directly to any of the potential financial assistance that will be awarded.
Once again, your unique circumstances will have to be taken into account. While certain formulas are in place to help determine what one spouse may have to pay another, things do tend to vary. This is why an experienced legal representative is so important. With good legal counsel, whether you are owed support or being asked to give support to your spouse, your interests will be protected.
An Experienced Attorney Can Help to Ensure a Better Outcome For Your Case
Family law can be a very personal and emotional topic. When you are involved with any legal matter that pertains directly to the future of your children or spouse, things can feel emotional, overwhelming, and uncertain. This is why it's a wise idea to retain experienced family law and divorce attorney. Your legal representative will be able to help ensure that your interests are looked after in the courtroom and out. No matter what your situation, it's always a good idea to retain legal counsel early on. This will help you secure a better overall outcome in your divorce or family law case.
Do You Need Assistance? Speak With an Experienced Family Lawyer Today
Remember, only your attorney will be able to answer any specific questions as they pertain to your unique case. We invite you to call us immediately with any questions that may be troubling you. Our skilled and experienced attorneys can answer any questions you may have in more detail. At Ketover & Associates, LLC, we're ready to help you with your case from start to finish and welcome you to call our offices to schedule a free consultation.