Significant Developments In New York Divorce Law
Significant changes have occurred in New York State Divorce Law over the past five years.
First, New York finally enacted a so-called “No-Fault Divorce” by the Divorce Reform Act of 2010, in August of that year, which became effective in October of 2010.
This change in the law provided for a new ground for divorce. Previously, the principal ground was Cruel and Inhuman Treatment, which required the Plaintiff to plead and prove acts of either physical or emotional cruelty. This ground could be contested by the Defendant spouse, which might then result in a Trial.
In contrast, the new ground, Irretrievable Breakdown of the Marriage, requires simply that the Plaintiff spouse swear that the marriage has reached the point of irretrievable breakdown, and has existed in that state for a period of at least six months. The appellate courts have already indicated that the Defendant spouse really cannot challenge this ground, hence the trial court could “automatically” find sufficient grounds, leaving only the collateral issues of custody, child support, maintenance, equitable division of assets, and debt allocation, to be settled.
The attorneys at The Jon Louis Wilson Law Office are readily equipped, by their collective experience exceeding sixty years in the practice of law, with extensive focus upon divorce and Family Court matters, to assist you in resolving issues involving divorce, custody, support and maintenance, and equitable distribution, in either Supreme and/or Family Court.
The second major change in Divorce law occurred this past September when a wholesale revision of the spousal support [maintenance] provisions of the Domestic Relations Law was enacted. Maintenance used to be called alimony; however, alimony could only be paid by a husband to a wife, whereas maintenance is gender neutral, and can be paid by either spouse to the other spouse.
The long awaited divorce law overhaul, that makes major changes to the maintenance laws, was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for permanent maintenance. The new law continues the temporary maintenance guidelines (support that is to be paid while a divorce case is in progress), but it also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered). The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation, while the new law lowers this cap to $175,000.00. The cap will change over time, in accordance with changes in the Consumer Price Index. In the court’s discretion, the Judge may consider income over the cap, or deviate from the guidelines by using the criteria set forth in the statute. Family expenses, while the divorce case is ongoing, under the new law, need to be considered, and allocated between the parties, by the court where it is appropriate.
The new maintenance provisions, including the formulas involved in computing maintenance, and the standards for deviating from these formulas, are extremely complex; however, the attorneys at The Law Office of Jon Louis Wilson are fully familiar, and well experienced with these critical changes in the divorce law. Our attorneys and staff will be happy to provide an obligation-free initial consultation to review and discuss these significant changes to the divorce law, and how these changes affect your rights.
Divorce has, unfortunately, affected the lives of an increasing number of families in recent years. When divorce or separation becomes 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, 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 familiar, well experienced, and respected.
Custody And 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 raise 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”, “shared custody”, “primary residential custody”, “visitation”, “access”, “parenting plan”, and similar confusing terms. Certainly, it is vital that you retain an attorney experienced in the areas of matrimonial and family law, such as the Law Office of Jon Louis Wilson, 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 pertaining to the child’s wellbeing. 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, alone, is more appropriate.
If custody of the 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 opinion, 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 decision. 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; together with 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 dete1mination 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, depending 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 upon 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.
Custody is the single most important issue, to be resolved, in divorce actions and Family Court proceedings. The attorneys at The Jon Louis Wilson Law Office are well versed in solving the issue of custody.
Whether your case is a divorce action before the Supreme Court, or a support petition in the Family Court, that Court will establish an amount of 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 which a child requires, such as food, clothing, shelter, etc.) is a percentage of the parents’ combined adjusted gross income, depending upon the number of children involved; for instance: 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 levels of the parties.
The parents’ basic child support obligation is subject to a combined income cap. At present, that “cap” is $141,000, 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 $ 141,000 “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 State, parents are required to support their children until age 21, or until a child is otherwise financially emancipated.
To be sure, this is only a brief 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 well versed in the relevant law, and experienced in litigating child support, and-related matters, such as the attorneys at The Jon Louis Wilson Law Office.
Equitable Distribution I 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 the marriage, equitable distribution of marital assets, and allocation of responsibility for payment of marital debt, are often the next most important issues to be resolved, 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 expectancy of future deferred compensation, such as a pension.
Some items of property are considered “separate” property, and are not subject to equitable distribution. Separate prope1ty includes property acquired before the 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 prope1ty, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; or prope1ty described as separate property in a written agreement between the parties. It is important for spouses to remember that “separate” property can lose its character, as “separate” property, and be considered marital property, by the Court, if it has been comingled 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 the payment of debts, which have 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 mo1tgage loan, car loan, credit card, etc.), then, in the eyes of that lender, both spouses are liable for the debt, no matter what the judgment of divorce provides. If the spouse who agrees, or is ordered, to pay a debt, in the judgment of divorce, but fails to do so, the lender can still collect from the other spouse, and the other spouse then has the burden of collecting from the one who failed to pay. Therefore, it is best to close-out joint credit cards, and other credit accounts, and to refinance all joint indebtedness, to the extent possible, and as early as possible, in order to avoid potential liability for the debts of your spouse.
Courts 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 detem1ining an equitable division of marital assets, in a given case, and the Court has considerable discretion in making this determination.
Debt allocation and equitable distribution are almost always major issues any divorce action. Therefore, it is critical that you retain an attorney experienced in properly recognizing and resolving these issues, such as the attorneys at The Jon Louis Wilson Law Office.
The foregoing is a summary of some of the major issues you are likely to encounter in any divorce action. There are, of course, numerous other sub-issues, and other problems, to be addressed and resolved, in order to successfully and favorably conclude a divorce action. The attorneys at the Jon Louis Wilson Law Office have valuable years of expe1ience representing clients, in divorce actions, in Family Court proceedings, and in all aspects of family and matrimonial law. The attorneys at The Jon Louis Wilson Law Office have the necessary skill and experience, together with well-earned reputations for working tirelessly to provide matrimonial and family law clients the best, most professional legal representation possible. You are not alone, the attorneys of The Jon Louis Wilson Law Office are prepared to stand with you! Don ‘t delay – Call one of our attorneys to discuss your case today!
Contact The Jon Louis Wilson Law Office Today
Please contact the Jon Louis Wilson Law Office for an obligation free initial consultation to learn your rights, and protect your interest in connection with a divorce or family court case. Call 716-302-0027 or fill out our online contact form.