Ask a Long Island, New York Lawyer: Breaking Down Legal Terminology and Other Common Family Law Topics
Are you considering filing for divorce in the Long Island area? It's a good idea to first understand some common legal definitions and how they apply in the state of New York. Knowing your legal terminology and how the divorce process works can help you communicate more effectively and better navigate the divorce process as a whole.
While only a skilled attorney can answer your questions as they apply directly to your case, we’ve created this guide to help you better understand certain legal statutes, guidelines, and terms. Below, we will go over a few of the most commonly asked questions about divorce, child support, visitation, spousal maintenance, and more.
Our law firm strives to attain the best possible outcome for every client we work with. We know that divorces can be complex and difficult. That’s why we work with each client on a personal basis. Our goal is to ensure that your legal needs are met to the highest degree. The skilled attorneys at our practice have seen hundreds of successful case outcomes and worked with individuals from all walks of life. Hiring an experienced New York divorce lawyer as soon as possible is the best way to ensure that your case will be resolved accurately and efficiently.
A Guide on The Basics of Divorce in New York
When a marriage reaches its breaking point, spouses and children are often faced with many life changes. Living arrangements, parenting schedules, and finances are almost always impacted to some degree during the divorce process. This can result in a storm of emotions. Under such stressful circumstances, legal technicalities may feel unimportant. However, it is critical to understand the legal ramifications of divorce. Being informed about key parts of the divorce process can help you make better decisions during any unanticipated stressful and emotional moments.
How are divorces done in New York?
A divorce is the final and legal termination of your legal marriage by order of the Court. Sometimes called a “matrimonial action”, the person filing for divorce from their spouse is known as the Plaintiff. The person who is being sued for divorce is known as the Defendant.
Divorces are handled by the New York State Supreme Court in your county. In this state, certain factors will determine the basis for a legal divorce from your spouse. These factors are known as the grounds (or reasons) for divorce. When a divorce judgment is made, orders about your marital property, child custody, support, financial division, and other critical aspects impacted by your marriage, will be made.
Grounds for Divorce
There are seven grounds for divorce in New York. Your attorney will be able to help you decide which grounds for divorce best apply to your specific situation. To be granted a divorce, you must have at least one of the following legal grounds:
1. Irretrievable Breakdown
This is usually called a no-fault divorce. It is the most common reason couples have for beginning the divorce process. One spouse, or the other (it does not have to be both) need to testify that there has been an irretrievable breakdown of the marriage relationship for at least six (6) months. Given the subjective nature of these grounds it is often used as the easiest and least messy way to claim you are entitled to a divorce. Also keep in mind that if your marriage is less than 6-months old, an annulment may be possible. Your attorney will be able to help you explore the possibility of an annulment in-depth.
2. Cruel and Inhuman Treatment
For this ground to apply, a Judge will review specific acts of cruelty experienced during the marriage. The more recent events having the most weight. The Plaintiff must show that they we subject to either physical abuse, mental/ emotional abuse or a combination of these behaviors when living with the Defendant. Proceeding along this ground can be emotionally very difficult as it requires laying bare all of the damaging and negative behavior experienced. Again, a skilled divorce attorney will be able to walk you through this ground and whether or not it may apply to your case.
3. Abandonment
This ground requires that the Defendant has abandoned the Plaintiff for at least one year. Abandonment may be physical (the spouse has left the home for at least one year) or sexual (one spouse has refused sexual intercourse for at least one year). When abandonment is sexual, it is known as "constructive" abandonment.
4. Imprisonment
If one spouse is imprisoned for 3 or more years in a row, the other spouse may legally use this ground for divorce. The spouse must also have been imprisoned after the marriage began. A spouse can use this ground while the Defendant is in prison, or for up to 5 years after their spouse was released from prison.
5. Adultery
For this ground to apply, the Plaintiff will need to show that their spouse has committed adultery after the beginning of their marriage. This can be difficult to prove because evidence from a third-party is often needed. In many cases of adultery within a marriage, the Plaintiff will have to use a different ground for divorce. Additionally, if a spouse knew of the adultery for a period of time and did nothing about it, it could be argued by the cheating spouse that the adultery was consented to and therefore cannot be used as a basis for divorce.
6. Divorce After Legal Separation
If a Plaintiff and Defendant sign and file for legal separation and then live in separate residences for a year or more, divorce after legal separation may apply. Keep in mind that for this ground to be valid, many requirements may need to be met.
Starting the Divorce Process
You may be wondering what to expect as you begin the divorce process. This is understandable. Since divorce laws can be complex, your lawyer will be the best person to ask about your specific divorce case. This is because different grounds for divorce can be followed by different legal processes. We will discuss a few steps that will likely need to be taken with any divorce.
• First, you will have to purchase an index number at the County Clerk's office.
• Then, you will file a Summons of Notice or Summons of Verified Complaint (the grounds for divorce will be included here).
• Next, your spouse will have to be served lawfully. Serving is the legal notification that divorce is desired by one spouse.
• Hiring a lawyer is the easiest way to ensure that you have completed all of the steps in the divorce process properly.
Are there legal requirements that need to be met to get a divorce in New York?
In a word, yes. Certain legal requirements must be met before the divorce process can begin. Apart from establishing grounds for divorce, you must have been continuously living in the state of New York for a specific amount of time. Depending on your circumstances, certain other legal requirements may also need to be met. Again, keep in mind that your lawyer is there to help ensure that you understand what requirements need to be met and how you can meet them as you start the divorce process.
Do I need a lawyer to get a divorce in New York?
While it isn't required that you have a lawyer to get a divorce, we strongly recommend hiring one. This is because divorce cases are legal matters handled by the New York Judicial system. Divorces can be legally confusing and fraught with complications. Your lawyer will be able to defend your assets, rights, and finances competently and effectively.
If you have children, it is especially important to consider hiring a qualified and skilled divorce attorney to defend you in the Family Court system and throughout the entirety of your divorce. To read more on the divorce laws and requirements in New York, click here.
An Explanation of Spousal Maintenance/Alimony
In the state of New York, alimony is the same thing as maintenance or spousal maintenance. In most states, maintenance is called spousal support or alimony. In the state of New York, it's simply called maintenance.
Maintenance is simply a payment from one spouse to the other during and after a divorce. Maintenance is deemed appropriate when there is a significant income difference between spouses during the divorce proceedings and after a couple is divorced. When maintenance is ordered, the spouse that earns more money will always have to pay the spouse that earns less.
New York has adopted a formula to use when determining how much spousal maintenance or alimony one spouse must pay another. The court will apply the parties’ income information to three formulas and will follow the formula that results in the least amount of money to be paid. These formulas are: 1) subtract 20% of the payee's income from 25% of the payor's income; and 3) multiply the total income of both spouses by 40% and subtract the payee’s income from that number. If child support is being paid it will affect how these numbers are computed. It can be a bit complicated which is why it is a good idea to consult an attorney who has experience dealing with spousal maintenance and alimony in divorces.
The Court has the ultimate power to determine how much maintenance or alimony should be paid. In addition to the formula there are other factors to be considered.
Additional Factors Considered When Determining Maintenance or Alimony Include:
• Sources of income for both spouses
• Overall vocational skills and employability
• The assets and debts
• The opportunity of the parties to acquire income
• The length of the marriage
• The conduct of the spouses during the marriage
• The age and health of the parties involved
• The Occupations of the parties and their incomes
• Any special needs of either spouse
Understanding Equitable Valuation of Marital Assets
Equitable distribution is a term that describes the dividing of financial and marital assets during a divorce. Generally, in New York, any property that was acquired together by spouses will be considered marital property. The thumbnail rule is that anything acquired before your legal marriage is separate property, anything acquired after your legal marriage is marital (subject to division) and anything acquired after the day you start your divorce will be presumed separate unless marital assets were used to acquire it.
Considering the extreme market changes that have taken place over the last few years, the date that a particular asset was valued can have serious consequences financially as assets are divided equitably.
Equitable valuation helps determine the value of assets based on their value or their value at the time they were acquired. Assets and property can include your marital residence, business, stocks, and more. A business valuation will likely need to be performed and considered if one of the spouses own their own business. The first step of a business valuation will be to determine whether or not a business is in itself a marital asset or separate property. Often an expert must be hired to value the business if the parties cannot agree on what it is worth. Additionally, the matter of whether a particular asset constitutes marital property is equally as important as the equitable distribution analysis that should be performed.
About Child Custody
When you are considering getting a divorce, or if you are already in the process of getting a divorce, you may be wondering how it will impact any children involved. Child custody is a very emotional topic, so we recommend speaking directly to a lawyer with experience in matters of Family Law and Divorce Law. This next section will go over some frequently asked questions about custody and how it applies in the state of New York.
What is custody?
Child custody orders are legal mandates that will determine who is responsible for the care of a child. There are usually two different parts of a custody order. These are legal custody and physical custody. If no custody order is in place, both parents have equal rights to the legal and physical custody of their children.
How do the child custody laws work in New York?
In the state of New York, you will have the option to file for either custody or, if you consent to your spouse having physical custody, you can fight for joint legal custody as well as rights of visitation or parenting time with your child(ren). You may also be able to choose whether to have your case heard in front of a Judge or you could consent to a Hearing Examiner (an attorney who is not judge but is employed by the courts to help with the overflow of cases).
Custody cases are usually started in one of two places: Family Court or Supreme Court. This means an attorney who practices divorce and family law will be best suited to help you with your custody case during a divorce or in a situation where there was a child born but no marriage occurred. A petition will be filed in the Family Court for the county where the parents or children live. When parents are in the process of getting a divorce, one parent may file for custody as part of the divorce in the New York Supreme Court. The custody order will then be included in the Divorce Judgment.
Will I get custody of my children after the divorce?
This is a complex question that may have far too many variables to answer in an article like this. Generally, however, the court will grant primary physical custody (the child(ren) will live primarily with one parent) to the individual in a child's life that can provide circumstances that are in the best interest of the child or children. This will usually be to the parent who has played the largest role in a child's day-to-day life; otherwise known as the “primary caregiver”. However, parents may also be able to file for joint or equal custody of minor children. To read more on how the custody process works in New York, click here.
How does visitation work?
In most cases, the Court will want to ensure that children have healthy relationships with both parents. If one parent has sole or primary custody of any minor children, the Court will help the parent without custody gain visitation rights to their child/children. Keep in mind that custody and visitation are two entirely separate matters legally. Visitation petitions can be filed separately from custody petitions. A court will rarely deny visitation to a parent, even if they do not have custody. In most cases, even unfit parents will be granted visitation of some kind, though it may be supervised by a third party. To read more about visitation in New York, click here.
Will I have to pay child support?
Child support is a payment from the non-custodial parent to the custodial parent aimed at providing financial assistance. Under New York State law, both parents are legally required to provide financial support for their children until they are 21 years of age unless that child goes into the military at 18, begins working full time at 18, or marries. These factors, along with some others, will classify the child as “emancipated”. Child support includes health insurance as well. Child support and custody are related but legally separate topics. Your attorney will be able to go in-depth about how child support works, whether you will have to pay it, and more. You can also read more about child support in New York by clicking here.
Don't Settle, Hire a Top Divorce Lawyer
If you are considering getting a divorce in the New York and Long Island area, hiring a skilled New York divorce lawyer is the best first step to take. Our firm has top divorce lawyers available to help you review and chart the best possible legal course for your case. At our firm, we have some of the best-reviewed divorce lawyers. Our attorneys have hundreds of successful cases under their belts. We work hard to ensure that our clients' rights and assets are protected to the utmost degree throughout every step of the divorce process.
Call Today and Let Us Help You Find the Best Divorce Lawyer For Your Case!
If you have any questions about divorce, custody, financial matters, or marital property division, we are here to help. We invite you to call and schedule an appointment at your earliest convenience. We will assign the best lawyer to your specific case based on your unique circumstances. Your lawyer will help you find the answers you need and show you how to start moving in the right direction.