Family law is a complex area of law that requires an attorney that is experienced and aggressive to fight for your cause. Whether you are going through a divorce or a custody battle you need a family lawyer with court room experience that will represent you relentlessly.
Our practice areas include child support, child custody, alimony/maintenance, collaborative divorce, father's rights, high net worth divorce, property division/equitable distribution, visitations, modification of child support, modification of child custody, modification of visitations, orders of protection, prenuptial and postnuptial agreements.
WHAT DO YOU NEED TO KNOW ABOUT DIVORCES IN THE STATE OF NEW YORK
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You must satisfy the residency requirements per Domestic Relations Law § 230 and you must satisfy one of the grounds for divorce in NY.
What are the grounds for a divorce in NY?
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Irretrievable breakdown in relationship for a period of at least six months (“no-fault divorce”)
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Cruel and inhumane treatment
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Abandonment
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Imprisonment
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Adultery
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Living separate and apart pursuant to a separation judgement or decree
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Living separate and apart pursuant to a separation agreement
What is equitable distribution?
When a spouse files for divorce the court’s must divide the marital property between spouses in a way that is equitable or fair. It is important to note that equitable distribution does not mean a equal split of the marital assets but rather a fair split depending on certain factors.
What are those factors?
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Each spouse’s income and property when they married and when they filed or divorce
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The duration of the marriage
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Each spouse’s age and health
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The need of the parent with custody to live in the family home and use or own its effects
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The pension, health insurance, and inheritance rights either spouse will lose as a result of the divorce valued as of the date of divorce
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Whether the court has awarded spousal maintenance
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whether either spouse has an equitable claim to marital property to which that spouse does not have title, based on that spouse's contribution of labor, money, or efforts as a spouse, parent, wage earner, or homemaker, including contributions to the other spouse's earning potential (by, for example, working to put the other spouse through school)
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The liquid or non-liquid character of all marital property
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The probable future financial circumstances of each spouse
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If the marital property includes a component or interest in a business, corporation, or profession, the difficulty of valuing that interest and whether it would be desirable for that interest to be retained intact, free from claims or interference by the other spouse
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The tax consequences to each spouse
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Whether either spouse has wastefully dissipated marital assets
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Whether either spouse has transferred or encumbered marital property in contemplation of divorce without fair consideration, and
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Any other factor the court expressly finds to be a just and proper consideration. (N.Y. Dom. Rel. § 236 (B)(5).)
Another important thing the court must decide is custody of any minor child.
In NY a minor child for custody purposes is a child of the marriage that is 17 years or younger. In this case custody and visitation must decided prior to the divorce being granted.
The Court awards custody and visitation based on what is in the best interest of the client.
The Court will look at many factors to figure out what would be in the best interest of the child, such as:
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Which parent has been the main care giver/nurturer of the child
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The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any
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The mental and physical health of the parents
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Whether there has been domestic violence in the family
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Work schedules and child care plans of each parent
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The child’s relationships with brothers, sisters, and members of the rest of the family
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What the child wants, depending on the age of the child
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Each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.
When can you modify a previous custody order by the court?
In order to modify a custody order, the parent seeking the change must show that there has been “a substantial change in circumstances.” Once it is establish that there has been a substantial change the court will look at the factors that are used to decide what is in the best interest of the child.
At what age is a parent obligated to pay child support in NY?
In NY state a child is entitled to be supported by his or her parent until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child is considered to be "emancipated" and the parents' support obligation ends.
A child may also be considered "emancipated" if he or she is between 17 and 21, leaves the parents' home and refuses to obey the parents' reasonable commands.
Who may file a petition for child support?
A petition for child support may be filed by the custodial parent requesting that the non-custodial parent pays child support.
When a child is receiving public assistance or is living in a foster home and receiving foster care benefits, the Department of Social Services may file a petition against the non-custodial parent or parents asking that the court enter an order for child support to be paid to the government agency while it continues to pay benefits for the child.
NOTE: There are no filing fees in Family Court.
How is child support calculated in NY?
Child support is calculated based on both parents' annual income and the number of children the parents are responsible for. If the parents' combined income is at or below a certain threshold, (currently $163,000) the court follows the simple guidelines listed below. If the combined income is more than the threshold (currently $163,000), the court could use the same formula for all income or just up to the threshold amount.
To come up with a basic child support obligation, the income of both parents is multiplied by the appropriate child support percentage (based on the number of children). To determine income, the starting point is the gross income that was (or should have been) reported on the parents' most recent federal income tax returns. If the parents filed a joint return, they must each prepare a form that shows their gross individual income.
Certain items are then subtracted from gross income:
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alimony paid (or to be paid) under a court order
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child support actually paid for a child from a previous relationship
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unreimbursed business expenses
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public assistance
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FICA (Medicare and Social Security) taxes actually paid, and
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New York City or Yonkers income taxes actually paid.
As an example, let's say you have the majority of physical custody of your one child, and you make $20,000 (after the allowed deductions), while the other parent makes $30,000. The total of your combined incomes ($50,000) will be multiplied by a percentage per child, or "child support percentage." These percentages are:
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17% of the combined parental income for one child
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25% of the combined parental income for two children
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29% of the combined parental income for three children
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31% of the combined parental income for four children, and
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no less than 35% of the combined parental income for five or more children (N.Y. Dom. Rel. § 240 (2022).)
In our example, the calculation would be: $50,000 x .17 = $8,500, which will be the basic child support obligation. You would be responsible for 40% of that figure ($3,400) because your income ($20,000) makes up 40% of the combined parental income ($50,000). The other parent would be on the hook to pay 60% ($5,100). As a result of the calculation, the other parent will make payments to you over the course of the year that add up to $5,100. Because you have physical custody most of the time, the court will assume that you're spending your share directly on your child's expenses.
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