The Law Office of Lance H. Meyer provides here the answers to some of the most frequently asked questions pertaining to family law matters such as divorce and child custody in New York. The information we provide is general and does not address all situations that might occur; nor is it intended to be a substitute for proper legal representation.
Every situation is different, so we encourage you to seek legal advice to gain a full understanding of whatever laws and requirements apply in your case. If you have further questions or would like to arrange for your complimentary consultation with our office, call us today.
- Do I need a lawyer to get a divorce in New York State?
New York divorce laws are complicated and we rarely recommend couples complete the process without consulting with a qualified divorce attorney. However, if you believe you and your spouse have sorted out all the property, parenting, and financial issues, and that your divorce will be uncontested, Do-It-Yourself Uncontested Divorce may be an option.
If you still need to work out parenting and financial issues, and your situation does not involve domestic violence, divorce mediation is an out-of-court option to consider that can save time and money for both spouses.
- Can I get a divorce if I am unable to locate my spouse?
New York State law requires: 1) that one spouse first file for divorce (the plaintiff) and 2) the summons prepared as a result of the filing must be personally served on the other spouse (the defendant). If you are unable to locate your spouse and want the notice served by some other means, you must apply for alternate service with the with the Supreme Court Clerk’s Office.
- What is an uncontested divorce?
A divorce is considered uncontested if you and your spouse both: 1) agree to the divorce and 2) have reached agreement regarding finances, children, and marital property.
- What is contested divorce?
A divorce is considered contested if either you or your spouse: 1) do not want to get a divorce, 2) do not agree on the grounds for the divorce, 3) do not agree on matters regarding finances, children, and marital property.
- What is child support?
Child support is the money a non-custodial parent pays to the custodial parent in the support and maintenance of the couple’s children who are under age 21.
- How is child support calculated?
The court calculates child support by: 1) combining the total of each parent’s net income (gross income minus certain deductions such as taxes), 2) multiplying the net income total by a percentage based on the number of children to receive support, and 3) splitting that amount to align with each parent’s proportion of net income against their combined net income total.
The Courts may consider additional factors in child support calculations such as expenses for child care, education, and medical care.
- What is child custody?
Custody is one parent’s legal right to control how his or her child is raised, also referred to as parenting. Courts determine who has legal custody, the right to make major decisions about their child, and physical custody, which parent the child lives with on a day-to-day basis. The noncustodial parent will probably be granted visitation rights to visit his or her child so as to remain an active part of their life.
- How is child custody determined?
A judge takes a variety of factors into consideration when determining which parent will receive custody of a child. The judge will always consider what is in the best interests of the child. A few of the factors a judge might consider include:
- Who the child’s primary caretaker is
- The quality of the home environment each parent provides
- The suitability of each parent, including their job, lifestyle, mental and physical health, etc.
- If the child has siblings and where they live
- If the parent can provide emotional and intellectual support for the child
- The existence of abuse or domestic violence
- How is property divided when a couple divorces?
When a couple divorces, the Courts rely on the Equitable Distribution law to determine an equitable division of marital property, which is not necessarily 50/50. The Equitable Distribution law considers the assets either or both spouses attained in the course of their marriage (marital property) and also any debt the couple incurred. Property either spouse owned prior to the marriage (separate property) does not factor into the accounting of equitable distribution. Nor does inheritance, personal injury payments, or gifts received during the marriage (excluding those from the spouse).
- How do I know if I am eligible for spousal support?
Your ex-spouse may be ordered by the court to pay spousal support, called spousal maintenance or alimony. A spouse seeking to receive support must first file a support petition and provide a financial disclosure and other relevant documentation. The other spouse must be served the petition, complete his or her own financial disclosure, and then appear in court when summoned.
The New York statute provides calculation formulas that consider the length of the marriage, each spouse’s earnings potential, and factors such as each spouse’s age and physical health, and how much each contributed to the home and lifestyle they led while married. Based on the information provided, a judge in the case will determine if spousal maintenance should be paid.
A spouse may also petition to receive temporary maintenance during pending divorce cases where the divorce has been contested.