New York State provides for "no fault" divorce, effective as of October 12, 2010. A spouse may seek a divorce if the relationship between the parties has broken down irretrievably for at least six months.

Additional grounds for divorce under the existing law are as follows: (1) physical abandonment or constructive abandonment for one or more years; (2) cruel and inhuman treatment that renders cohabitation unsafe; (3) adultery, (4) confinement of a spouse in prison for a period of three or more consecutive years after the marriage; (5) living separate and apart pursuant to a judgment of separation for a period of one or more years; or (6) living separate and apart pursuant to a written separation agreement for a period of one or more years.

     The "no fault" divorce law is less restrictive than the traditional grounds for divorce and makes it easier and less stressful for a party seeking divorce. Once grounds for divorce are established, the remaining issues generally include: custody and visitation, child support and equitable distribution of assets and debts.

LEGAL SEPARATION

     Some married couples prefer to legally separate by Agreement, rather than divorce. The major advantage to a legal separation is that, often times, a spouse may continue to be covered under their spouse’s existing medical insurance. 

     Other reasons parties may choose a legal separation is a potential future reconciliation, the creation of grounds for divorce or, for other personal reasons. Living separate and apart pursuant to such Separation Agreement for a period of one or more years, gives rise to grounds for divorce. After the one-year period expires either party may sue for what is commonly known as conversion divorce: the terms of the Separation Agreement are converted to divorce, provided the moving party has substantially complied with the terms of the Agreement.

     When parties do not agree to separate and one spouse chooses a separation rather than divorce, he or she may commence an action for separation. The grounds for separation are similar to those for divorce (cruel and inhuman treatment, abandonment, neglect or refusal to provide support, adultery, imprisonment). Likewise, a judgment of separation may be converted to a divorce after one or more years if the moving party has substantially complied with the terms of the Agreement.

CHILD CUSTODY AND VISITATION

     A parent with sole physical custody is referred to as the residential custodial parent; this is the parent with residential custody. A parent with legal custody can make decisions about the child's education, religious upbringing, and medical issues. Generally, in an uncontested divorce, parties share “legal custody,” also known as joint legal custody and one parent remains the residential custodial parent. When parties have “joint legal custody” this means that the decision making is shared by both parents. If one parent has sole legal custody, that parent makes all major decisions regarding the child’s health, welfare and education.

     In today's world most people recognize that children need both a mother and a father who are active participants in their lives. The courts recognize this fact and will sometimes encourage a joint custody arrangement. If the parties are at war and refuse to cooperate, then the court must award custody based on the "best interest of the children". The most significant factor where both parents are competent and loving is the stability factor. The court will look to maintain the status quo living arrangement and will not flip flop children from one household to another, absent good cause. If both parents are joint caregivers and both play an active and meaningful role in their children's lives, joint custody is the most reasonable solution.

CHILD SUPPORT

     Child support is awarded to the custodial parent based on a formula which is set forth in the Child Support Standards Act. Simply stated, child support is calculated based on the parties' combined income after deducting FICA, maintenance, NYC taxes, unreimbursed business expenses, public assistance, SSI, and child support for children from a prior marriage or prior relationship. The court must apply 17% for one child, 25% for two children, 29% for three children, 31% for four children and no less than 35% for five or more children to combined income of $148,000. The court may apply these percentages to the total combined income over $148,000 but it is not mandatory. Evidence of the family's standard of living during the marriage, children's needs, and the financial resources of both parents are significant factors of proof.

     There may be future adjustments to child support upward or downward based on a substantial change of circumstances or, three years have passed since the date of the original child support order, or either parties income increases or decreases by 15% or more. The party who becomes unemployed or experiences a reduction of income must make an immediate application for modification, however, the court will consider whether the loss of income was self-imposed.

     Failure to pay child support may result in the filing of a violation petition. Once non-payment of child support is proven, the court may enter a money judgment, suspend the violator's drivers license or other state issued licenses. If it is proven that the violation was willful, the court may incarcerate the violator for non-payment of child support.

COUNSEL FEES

     Under New York State law, effective October 12, 2010, there "shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Generally, in an uncontested divorce, the monied spouse agrees to pay some portion of the less monied spouse’s counsel fees. In a contested divorce action, the judge typically awards the less monied spouse counsel fees. The purpose is to allow both parties an opportunity to be represented by counsel.

MAINTENANCE

     As of January 25, 2016, New York State enacted a new spousal maintenance (alimony) law. The new law significantly changed the way temporary spousal maintenance and post-divorce spousal maintenance is calculated. Maintenance is calculated pursuant to a formula and the amount calculated is the presumptive amount of maintenance to be paid. The payor spouse can argue that the presumptive amount is “unjust or inappropriate” based on the enumerated factors set forth in the statute. The calculation caps the payor spouse’s income at $178,000. This means, for example, if the payor spouse earns $300,000, when we calculate maintenance, it is only calculated on $178,000 of income. The payee would need to prove that he or she is entitled to more maintenance above the cap, based on various factors, including the lifestyle of the parties during the marriage. For a more detailed explanation of how maintenance is calculated, call us at (631) 321-8600 or review the Q&A section on our web site.

EQUITABLE DISTRIBUTION OF ASSETS AND DEBTS

     The final issue, equitable distribution, mandates distribution of marital assets and debts. That is, assets acquired by the parties during their marriage, whether from the husband's income or from the wife's income. Typically, such assets include the marital home, bank accounts, stocks, pensions, IRAs, 401K plans, a business, whether owned and operated by the husband or wife, and personal property such as furnishings, boats, cars, jewelry and the like. Generally, if the asset was acquired during the marriage, it is marital property, regardless of how title is held. If one party used pre-marital funds or other separate property, and they can prove it, they are entitled to a separate property credit upon distribution of the asset. 

     Separate property, such as an inheritance or personal injury settlement for pain and suffering, is not part of the marital pie. Disputed issues arise when separate property is converted or gifted to the non-titled spouse or co-mingled with marital property. Once such separate property is converted to marital property, it loses its distinction and is deemed to be marital property. It is then up to the court to determine what is "equitable," given all the facts and circumstances.

     The Law Office of Glass & Rau, P.C. can help you manage the stress and complexity of dealing with a divorce. If you want to learn about your rights upon divorce or if you would like to determine what your financial responsibility will be upon divorce, contact us today at (631) 321-8600 to schedule a 30 minute free consultation.