Divorce Attorney: Long Island

Our Law Firm represents people involved in a divorce, or in other matrimonial actions, in New York State. Please click on the Home Page tab to the left, to learn more about us, or call for an appointment. The following explains some of the procedures and concepts involved in a New York Divorce, the tabs at the left set out these concepts in greater detail:

Divorces in New York State are granted by the Supreme Court, which exists in each county. Divorces may be contested, in which the judge hearing the case decides the issues involved; or uncontested, in which the divorcing spouses enter into an agreement settling all issues. Divorces are a type of lawsuit, like business disputes or accident cases, and the formalities of a lawsuit are required to be followed, such as the filing and serving of Summons and Complaints, the application of discovery through subpoenas and other means, and obeying of legal deadlines. Contested divorces culminate in trials. Uncontested divorces do not require trials, but are granted on submitted paperwork.

In every divorce case, the court may also grant related relief, including the division of property between the spouses (known as “equitable distribution” under New York matrimonial law), custody and visitation of children, child support, spousal maintenance (which used to be known as “alimony”), and award attorney fees to the spouse with less resources. Under certain circumstances, a court may grant an Order of Protection to protect a spouse and/or children from the other spouse. In a divorce in New York, it is still generally required that there be grounds for a divorce, or “fault,” which sets out a reason for the divorce.

Contested vs. Uncontested Divorce

A contested divorce is generally understood to be a divorce in which the judge makes a determination after trial, about the divorce or the other important issues involved in the divorce, such as property division, child custody and visitation, etc. An "uncontested divorce" is a divorce in which the parties come to an agreement on their own concerning these issues, an then enter into a formal contract (stipulation) settling the case. The judge then adopts the agreement into the divorce. Our law firm settles many divorces on an uncontested basis, at a reduced cost as there is no dispute in court. Many cases that begin as contested divorces are able to settle prior to an actual trial.

New York law requires grounds for a divorce. There are six grounds for divorce in New York. The first four require “fault,” they are (1) cruel and inhuman treatment, conduct that makes it unsafe or improper for the spouses to continue to cohabitate; (2) abandonment for a period of one year or more, which may consist in a spouse leaving the home, locking the other spouse out of the home, or of “constructive abandonment” in which the couple remains living in the same house, but one spouse refuses to sleep with the other; (3) adultery; and (4) incarceration for a period of three years. There are two grounds that do not require a showing of fault: where the parties have been living apart pursuant to a written separation agreement for a period of one year or more, and being apart for a period of one year or more pursuant to a separation judgment issued by a court.

New York State law does not allow for a divorce to be granted for “irreconcilable differences.”

When parents separate, and cannot agree on the custody of their children, courts will decide the issues of custody and visitation of the children. The standard utilized for deciding custody and visitation is the “best interests of the children.”

Custody and visitation can be decided outside of a divorce case. Usually, where divorce is not an issue, custody and visitation cases are before the Family Court, instead of Supreme Court. Unmarried couples and married couples not seeking divorce will have their cases heard in Family Court.

When custody and visitation is to be decided by the court, the judge will usually appoint a Law Guardian on behalf of the children. The Law Guardian is a lawyer who represents the children. They are not mediators “trying to work out a deal between the parents.” They represent the children, they do not represent either parent.

“Joint custody” usually means joint legal custody, where one parent has sole custody, the other parent is granted visitation. Joint custody means joint responsibility to decide issues about the children. Under joint custody, the child usually resides full-time with one parent and visits with the other. Joint custody does not imply splitting the child’s time equally in half, although occasionally parents will agree to shared custody, in which they divide the children’s time evenly between themselves. “Sole custody” means one parent has responsibility to make decisions for the child. As a general rule, courts will not award joint custody where parents are argumentative and antagonistic toward each other, but will grant one parent sole custody, and visitation to the other.

The non-custodial parent is generally entitled to visitation. Visitation should be regular and meaningful. Where a court determines that a parent is in some way a risk to the child, it may order “supervised” visitation, in which the parent may only have contact with the child in the presence of a third party.

In every divorce action, the court is required to inquire into child support for the children of the marriage under the age of 21.

Under the Child Support Standards Act, there is a mathematical formula used to calculate the presumed child support amount, based on the number of children less than 21 years of age. For one child, it is 17%; for 2 children, it is 25%; for 3 children, it is 29%; for four children, 31%, and for five or more children, 35%. There are a limited number of deductions that can be taken from gross income before child support is calculated. The percentages are applied to the first $80,000 of combined parental income. Where the combined parental income is over $80,000, the court is given more discretion in determining child support. For combined income under $80,000, the court has the authority to deviate from applying the standard percentages for good cause.

Parents are obligated, in New York State, to support their children up to the age of 21. Child support will terminate earlier, if the child is emancipated prior to age 21.

In addition to the child support payment calculated by the percentages of income, a non-custodial parent will be obligated to pay a portion of a child’s medical expenses, the custodial parent’s cost of child care, and in certain cases, towards educational expenses, like college.

Child support may be ordered as part of divorce in the New York Supreme Court, or in the Family Court, where no matrimonial action is pending.

Once a child support order is in place, either parent may seek to modify the order, to increase or decrease the amount of child support. Generally, a modification is not granted retroactively, but only to the date that a petition to modify is filed. Child support arrears are almost never excused for a period retroactive to a date before the date that the petition is filed.

Divorce cases also require that the couple’s property be divided up. This process is call “equitable distribution” in New York. It applies to all property, including real estate, financial accounts, pensions, personal property, etc.

The law distinguishes between “separate property” and “marital properly.” Separate property is property belonging exclusively to one spouse only, and is generally property owned before the marriage, or acquired during the marriage by inheritance, gift or as damages for personal injuries. Marital property is generally all property acquired during the marriage that is not classified separate property. The fact that property is held in title by only one spouse, and not jointly, does not mean that property is excluded for equitable distribution. However, where one spouse places the other spouse’s name on separate property, it may convert it to marital property. It is often very difficult to determine if property is separate or marital, and someone entering into a divorce should not assume what at an item of property is to be classified without consulting an attorney.

In determining equitable disposition of property, a court will consider: the income and property of each party at the time of marriage, and at the time of the commencement of the action; the duration of the marriage and the age and health of both parties; the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; any award of maintenance under subdivision six of this part; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; the liquid or non-liquid character of all marital property; the probable future financial circumstances of each party; the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; the tax consequences to each party; the wasteful dissipation of assets by either spouse; any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; any other factor which the court shall expressly find to be just and proper.

Property is identified during the pretrial portion of a divorce case, known as “discovery.” It is possible during discovery to use legal means to trace assets, review bank account deposits and withdrawals, obtain credit card records, and employment files, and the documents relevant to each case. People, including the other spouse, may be placed under oath and asked questions about financial issues in pretrial depositions. Frequently, appraisers are used to value assets such as real estate, pensions, collectibles and family businesses.