FAQs

Here we have tried to answer some of the primary and important questions that crop in the minds of couples who are contemplating about divorce or actually undergoing divorce.

Do I need a lawyer to get divorced?

Many divorcing couples think they can manage their divorce without a family lawyer. If you think the same, remember divorce law is pretty complex and complicated. Even if you and your spouse have sorted out all the parenting and financial issues and you think you can use a DIY uncontested divorce form to end your marriage, you should still consult a family lawyer.

If you have differences and have been unable to resolve it amicably, you can opt for divorce mediation. This can save you money and also help to improve your relationship with your kids. Above all, it can make the divorce less stressful. But if domestic abuse or missing spouse is involved, mediation is not the best way forward.

What is the difference between Contested and Uncontested Divorce?

An uncontested divorce refers to both spouses agreeing to a divorce and also coming to an understanding about finances, children and property. If this is the case, you proceed with an uncontested divorce and obtain a divorce without appearing in Court.

On the other hand, a contested divorce is when one of the spouses does not want a divorce, disagrees with the legal reason for a divorce and/or is in disagreement about the children, property and finances.

As the judge would require a lot of details to make a judgment on the points spouses disagree on, you and your spouse would have to go to court several times. If your divorce is contested, you should always hire a qualified lawyer.

What is child support?

In the State of New York, law clearly stipulates a child has all legal right to share both parents’ income as well as standard of living. Child support refers to the money the custodial parent receives for the child from the non-custodial parent for a child under the age of 21. The amount of child support is calculated using a formula. It can be rewarded by the divorce court as part of the divorce proceeding or by the family court as a part of child support proceeding.

How does a court calculate child support?

Child support is calculated based on the net income of each parent. Net income refers to gross income less certain types of deductions, like NYC income tax, spousal support, child support being paid for other children, FICA and Yonkers income tax. Thereafter, the court totals up both parent’s net income and the resultant figure is multiplied by a percentage based on the number of children involved. The percentage are as follows:

  • 17 percent for one child
  • 25 percent for two children
  • 29 percent for three children
  • 31 percent for four children
  • Nothing less than 35 percent if there are five or more children

Once the percentage multiplication is done, the amount is then divided based on how much of each parent’s net income is taken to reach combined parental net income. It is prudent to remember, a custodial parent may also ask for child care expenses, medical expenses and educational expenses over and above basic child support.

What happens to property after a divorce?

When you and your spouse are going through the divorce proceeding, you would have to inform the judge about your debts and income. After the divorce is granted, the property will be divided as fairly as possible. However, in most cases, the division is not equitable. The division of property takes place under Equitable Distribution Law of New York.

What is the Equitable Distribution Law?

In New York, Equitable Distribution Law views marriage as a social and economic partnership. Based on this law, it is mandatory for the judge to divide the property fairly, or as fairly as possible.

As per Equitable Distribution Law, just the marital property is considered. All property the spouses have bought or acquired during the course of their marriage is considered, regardless of who the owner of the property is. Even retirement plans are part of marital property. The court does not take into account property acquired or bought prior to marriage, personal injury payments, gifts and inheritance.

What if I am a victim of domestic violence?

If you are a victim of domestic violence, you should immediately apply for an Order of Protection. This can be done via the court. At the same time, hire the services of a qualified family lawyer, who can guide you.

Can I get spousal maintenance or "alimony"?

After you get divorced, you or your spouse may be required to pay spousal maintenance, also referred to as alimony. Usually, this is a court-ordered payment and is usually for a limited period of time. If you need maintenance and your ex-spouse has the ability to pay it, you may be able to get it.

In case you are still living together with your spouse or you are in the middle of your divorce, you may be eligible for temporary spousal maintenance. A 2010 law has made it possible for judges to take into consideration factors and formula to calculate temporary alimony.

What if I cannot locate my spouse?

As per the prevailing divorce law in New York State, the Summons of Notice or Summons and Verified Complaint has to be personally served to your spouse. If your spouse is missing and you want to have the notice served by some other means, you would have to seek permission from the court by filing an application for alternate service. This can be done at the Supreme Court Clerk’s Office in the same county where you have filed for divorce. Your lawyer will be able to guide in this matter.

What is custody?

In legal terminology, child custody refers to the legal right a parent has to control their child’s upbringing. In some cases, one parent can have the custody of the child, while the other gets visitation rights. In a divorce, both parents have the right to request for their child’s custody and visitation.

How will a judge decide custody?

When it comes to custody and visitation, a judge considers the best interest of the child before making a decision. Some of the factors taken into consideration include:

  • Who is the primary caretaker of the child all this time?
  • The quality of home environment provided by each parent
  • How suitable or apt each parent is? Here the judge takes into consideration home, lifestyle, job, sound judgment and good mental and physical health
  • Where is the child living now and for how long?
  • The ability of each parent to provide intellectual and emotional support to the child
  • Which parent does not try to keep the other parent out of the child’s life
  • Which parent the child wants to live with, if the child is old enough to answer this
  • Whether one of the parents has been abusive towards the child
  • Whether the child would be separated from his or her siblings
  • Whether there is a case of domestic violence in the family

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