Lockport, NY Divorce Attorney
NEW: New York State has finally enacted legislation that allows New Yorkers to obtain a "no fault" divorce. The Divorce Reform Act of 2010 was signed into law by Governor David Paterson on August 13, 2010, and took effect sixty days later, on October 12, 2010.
In contrast to the existing law, where a spouse was required to allege and prove fault against the other in order to obtain a judgment of divorce, the new law now also allows New Yorkers to obtain a divorce where there has been an "irretrievable breakdown" of the marriage for a period of at least six months. By creating an avenue whereby one spouse is no longer required to assign blame to the other for the problems within the marriage, it is hoped that this will lessen stress, conflict and the potential for emotional damage within the family.
The Divorce Reform Act of 2010 also contains other important changes in the law including the creation of an income-based formula for the payment of temporary spousal maintenance during the pendency of the divorce action.
Please contact the Law Office of Jon Louis Wilson for an obligation-free initial consultation to learn your rights and to discuss how the Divorce Reform Act of 2010 affects you.
Divorce has, unfortunately, affected the lives of an increasing number of families in recent years. When divorce or separation become an issue affecting you and your children, it is vital that you understand your rights with respect to custody, visitation, child support, equitable distribution, spousal maintenance (sometimes also referred to as “alimony”), payment of debts, attorney fees and a host of other issues. This is a complicated area of the law, but an area with which the attorneys at the Law Office of Jon Louis Wilson are both familiar and well experienced.
At the outset, New York is a “fault” state and its Courts require that a person suing for a judgment of divorce establish “grounds” - the reasons or basis - justifying the granting of the judgment of divorce. Currently, New York State does not recognize “irreconcilable differences” as a valid “ground”. The grounds for divorce set forth in New York’s Domestic Relations Law are: cruel and inhuman treatment; abandonment; adultery; living separate and apart from your spouse pursuant to a decree or judgment of separation for a period of one year or more; living separate and apart from your spouse pursuant to a written separation agreement (provided it is properly signed and the terms of the agreement have been adhered to); and your spouse’s confinement in prison for three consecutive years or more during the marriage.
Custody / Visitation
In any divorce involving children, the most important consideration for parents will be assuring that the children are properly cared for, both emotionally and financially, and determining how they will parent the children going forward. Perhaps for the very first time parents will be exposed to such terms as “custody”, “physical custody”, “joint custody”, “sole custody”, “primary residential custody”, “visitation”, “access”, “parenting plan”, and the like. Certainly, it is vital that you retain an attorney experienced in the area of matrimonial and family law to represent you in an action for divorce or in any Family Court proceeding.
Primary residential custody, or physical custody, simply refers to where the child or children will primarily live. The concept of legal custody (think “joint custody” or “sole custody”) refers to whether one or both parents have the legal authority to make important decisions involving the child. Three of the most significant decision making issues involving legal custody relate to religious, educational and medical decisions with respect to the children.
Joint custody affords both parents input and decision making authority and allows both parents a role in raising their children, provided both parents can work together in making these decisions. If it becomes clear that the parents are unable or unwilling to work together for the sake of the children, the Court may determine that an award of sole custody to one parent is more appropriate.
If custody of children is in dispute, the Court will appoint a “law guardian” – sometimes referred to as the “attorney for the child” to specifically represent the interests of the child in the divorce or Family Court proceeding. Courts generally place a great deal of weight on the law guardian's position, but will consider all relevant facts of a given case and are not bound to follow the law guardian’s recommendations.
Absent an appropriate agreement between the parents, a Court will award primary residential custody, or “physical custody” of the children to a parent based upon a determination of what is in the child’s overall best interests. This is often a difficult undertaking because the Court will weigh any and all factors it deems relevant in making this extremely important determination. The Court will consider the respective availability of each parent, the strength of the respective emotional bonds between the children and each parent, which parent has served as the primary caretaker of the children, the effect on children of changing their living situation, religion, the presence of any drug or alcohol abuse issues, findings of child abuse or neglect, each parent’s mental and emotional stability, each parent’s physical health or disability, if any, the willingness of each parent to foster a relationship between the child and the other parent, among several other factors. Also, if a child is considered old enough, the Court will consider the child’s preference. The Court will also consider practical matters such as the respective ability of each parent to provide material necessities such as food, shelter, and clothing.
Along with a determination of custody, the Court will order visitation or “access” time for the non-custodial parent. What visitation, or “access” time the non-custodial parent is awarded is determined on a case-by-case basis, based upon the unique facts and circumstances of the parents and the children.
Parties to a divorce action will find that Courts are increasingly incorporating programs based upon concepts borne of the latest research into the effects of divorce and separation on minor children. Accordingly, many Courts now require parenting classes for all divorcing parents of minor children, and appointing “parenting coordinators” usually mental health professionals and/or drug and alcohol counselors if appropriate, in an effort to address family issues, to settle child-related disputes and to reduce litigation.
Remember that Court orders involving minor children are never final and can be modified if there exists a sufficient change of circumstances and the best interests of the children require modification. Therefore, if there is a sufficient change of circumstances, parents can always go back and request that the Court make an appropriate change.
Child Support
Whether your case is a divorce action before the Supreme Court or a support petition in the Family Court, that Court will set child support based upon the parents’ income pursuant to the Child Support Standards Act (“CSSA”). Generally speaking, the CSSA provides for two main categories of support: the “basic child support obligation” and certain “add-ons.”
For most parents, the basic child support obligation (the amount contributed to pay for the basic necessities a child requires, i.e. food, clothing, shelter, etc.) is a percentage of the parents’ combined adjusted gross income, depending upon the number of children involved: 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. Once the combined basic child support obligation is calculated, the Court will then determine each parent’s share of that amount based upon the respective income level of the parties.
The parents’ basic child support obligation is subject to a combined income cap. Effective January 31, 2010, that “cap” will increase to $130,000, meaning that the percentages set forth above will be presumed to be the correct amount of basic child support each parent will pay for the basic support needs of their child or children if the parents’ combined income is at or below the $130,000 “cap”.
The law provides a parent the right to challenge the presumptively correct guideline percentage set forth in the Child Support Standards Act if his or her individual circumstances warrant it. This is referred to as a request to “opt-out” of the Child Support Standards Act.
The “add-ons”, which are paid in addition to the basic support obligation, may include a share of childcare costs, health care expenses not covered by insurance, and educational expenses, among others set forth in the Child Support Standards Act.
In New York, parents are required to support their children until age 21, or until a child is otherwise emancipated.
To be sure, this is only a summary of the topic and there are numerous other considerations to be taken into account in determining child support. Therefore, it is critical that you choose an attorney versed in the relevant law and experienced in litigating child support-related matters.
Spousal Maintenance
Spousal maintenance, sometimes referred to as “alimony” is, generally speaking, a payment of money by one spouse to another (typically in weekly or monthly installments) for a certain length of time to enable the less financially well-off spouse to support or maintain himself or herself. The Domestic Relations Law sets forth several statutory factors that Courts are to consider in determining whether spousal maintenance should be paid and, if so, how much and for how long. Judges are afforded considerable discretion in making spousal maintenance determinations. Unlike child support payments, spousal maintenance payments are taxable to the receiving spousal and tax deductible to the paying spouse.
Equitable Distribution / Debt Allocation
After a divorce is granted, the Equitable Distribution Law requires that the economic affairs of the marriage (the “economic partnership”) be concluded via equitable distribution of the marital property. Aside from issues relating to the custody and care of the children of a marriage, equitable distribution of marital assets and allocation of responsibility for marital debt are often the next most important issues in virtually every divorce action.
In a divorce action, “marital assets” – generally speaking, assets acquired during the marriage - are subject to division by the Court, which will make every effort to “equitably”, or fairly, distribute these assets. Often misunderstood is the fact that “equitable” distribution does not necessarily mean “equal” distribution. Marital assets include not only tangible property (i.e. houses, automobiles, bank accounts, retirement accounts, etc.), but also intangible assets such the enhanced earning capacity resulting from the attainment of educational degrees and professional licenses.
Some items of property are considered “separate” property and not subject to equitable distribution. Separate property includes property acquired before marriage or property acquired by bequest, devise, descent or gift from a person other than your spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; or property described as separate property by a written agreement of the parties. It is important for spouses to remember that “separate” property can lose its character as “separate” and be considered marital property by the Court if it has been co-mingled with marital assets or if it has appreciated in value during the marriage due to the efforts of the other spouse.
Absent an agreement between the parties, the Court will also allocate responsibility for debts that accrued during the marriage. However, it is important to note that if both spouses have obligated themselves to pay a debt (i.e. both spouses signed an agreement with a lender to repay a mortgage loan, car loan, credit card, etc.) in the eyes of that lender both spouses are liable for the debt, no matter what the judgment of divorce says. If the spouse who agrees or is ordered to pay a debt in a judgment of divorce doesn’t do it, that lender can still collect from the other spouse and that other spouse then has the burden of collecting from the one who didn’t pay. Therefore, it is best to close joint credit cards and other credit accounts, and to refinance joint indebtedness as much as possible and as early as possible in order to avoid potential liability for the debts of your spouse.
Courts very much prefer that the parties resolve issues of equitable distribution between themselves if at all possible. However, absent an appropriate agreement between the parties, the Court will consider numerous factors in determining what an equitable division of marital assets is in a given case and has considerable discretion in making this determination.
Debt allocation and equitable distribution turn out to be major issues in almost any divorce action. Therefore, it is critical that you retain an attorney experienced in properly recognizing and resolving these issues.
The foregoing is a summary of some of the major issues spouses are likely to encounter in any divorce action. There are, of course, numerous other sub-issues and other issues to be addressed and resolved in order to successfully and favorably conclude a divorce action. The attorneys at the Law Offices of Jon Louis Wilson have many valuable years of experience representing clients in divorce actions, in Family Court proceedings and in all aspects of family and matrimonial law. We have the necessary skill and experience, along with a well-earned reputation of working tirelessly to provide matrimonial and family law clients the best, most professional legal representation possible. You are not alone! Don’t delay - Call one of our attorneys to discuss your case today!
PLEASE CONTACT THE LAW OFFICE OF JON LOUIS WILSON FOR AN OBLIGATION FREE INITIAL CONSULTATION TO LEARN YOUR RIGHTS, AND PROTECT YOUR INTEREST IN CONNECTION WITH A DIVORCE OR FAMILY COURT CASE.
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