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Divorce & Family Law (NY Specific)

In New York, there are six grounds for divorce. Of the six grounds, four of them are based on the "fault" of one of the parties. They are: a) cruel and inhuman treatment; b) abandonment for one or more years; c) imprisonment for three or more years; and d) adultery. Living apart for one year under a separation judgment granted by a Court or under a separation agreement signed by the parties are the two grounds that are not fault based.

In New Jersey, there are several "fault" grounds and one "no fault" ground. With regard to the fault grounds, there are nine, which are adultery, desertion, extreme cruelty, separation, drug addiction, habitual drunkenness, institutionalization, imprisonment and deviant sexual conduct. There is also the no fault ground, which is living separate and apart for eighteen months.

Will marital fault impact on my rights to a property settlement?

Generally, marital fault does not impact on the economic issues of the divorce. However, there are exceptions, particularly when one spouse is found to have wasted marital assets. Another example may be adultery which is not a factor with regard to equitable distribution issues, but it may be a factor in determining alimony. Again, this is the exception as opposed to the rule.

How is child custody determined?

In New York, in a contested custody battle, custody of the children is determined through an exhaustive examination of the totality of the circumstances to determine the "best interests of the children." In determining what is in the best interest of the children, a court will consider many factors, including:

a) the pre-existing custodial arrangement; b) who is the primary caretaker of the child; c) the historical relationship of the child and the parents; d) the financial status and ability of each parent to provide for the child; e) what is the nurturing ability of the parents; f) who has better judgment; g) the desirability of keeping siblings together; h) the wishes of the child, if of sufficient age and maturity; i) the parents' lifestyles, including substance abuse or chemical addiction of a parent; j) the parents' religion; k) whether a parent will encourage or discourage visitation; l) continuity of a stable environment; m) the age of the child; n) a parent’s neglect or abuse of the child; o) the quality of each parents' home environment; p) the parental guidance each parent provides for the child; q) the ability of each parent to provide for the child's emotional and intellectual development; r) the relative fitness of the respective parents including their mental condition; and s) the length of time the present custody arrangement has been in effect.

In New Jersey, unless the parties can agree, custody is determined by the "best interests of the children." In general, in New Jersey, we have now moved toward a concept of a "parent of primary residence" (PPR) and a "parent of alternate residence" (PAR), the object being that the parents in general should be joint custodians of their children, each with input into the manner in which the children are being raised with the children having a primary and alternate residence. However, this recent change in nomenclature does not change the fact that one party or the other will have the children in their home more than the other. When this is an issue, and the parties cannot agree, a study will be undertaken of each of the households and, in most cases, a neutral party will be appointed by the Court to interview the parties and perhaps the children, view the households and make recommendations to the Court.

How is Child Support calculated?

Child support in New York is calculated pursuant to the Child Support Standards Act ("CSSA") The basic child support obligation is calculated by multiplying the combined parental income by the appropriate child support percentage. Income is defined as "gross income as was or should have been reported on the most recent federal income tax return" less deductions for social security and New York City and Yonkers income taxes. The "child support percentage" is fixed at: a) 17% of the combined parental income for one child; b) 25% of the combined parental income for two children; c) 29% of the combined parental income for three children; d) 31% of the combined parental income for four children; and e) no less than 35% of the combined parental income for five or more children.

In New Jersey, child support is based on Child Support Guidelines in New Jersey and is basically determined by taking the income of each of the parties and also some other factors and plugging same into a set formula that has been determined by a committee of the New Jersey Supreme Court. Besides including the income of the parties, the amount of time that each party spends with their children is also a factor so that essentially, in some sense, the more time that a parent spends with the children, the lower his or her child support obligation will be. There are also several other factors that go into the equation, including the requirement to pay child care and other factors. The only way to make a definitive answer as to how much the child support obligation will be is to have all pertinent information available and then utilize the guidelines step by step in order to find the ultimate amount.

What property is subject to equitable distribution?

All marital property may be equitably distributed. Martial property is broadly defined as all property acquired by either or both parties during the marriage, but before execution of a separation agreement, and before commencement of a matrimonial action, regardless of the form in which title is held.

How will the marital property be divided?

The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. "Equitable" does not necessarily mean that the property will be divided one-half to each of the parties. The theory is based upon marriage as a partnership so that even if one party (usually the husband) technically acquired all of the assets through earned income, while the wife was at home and not working outside the home, the Court would still recognize that the marriage was, in fact, a partnership and but for the fact that the wife was at home keeping the household for the family, he would not have had the opportunity to earn the income for this marital partnership. Thus, the identity of the person who actually earned the money is immaterial and unless the parties can agree, the Court would distribute all property in a manner that it deems "equitable."

What property is not subject to equitable distribution?

There are several categories of property not subject to distribution. The major ones include property acquired before the marriage which was maintained separately from marital assets or gratuitous transfers by way of gifts, devise or bequests from third parties.

How is alimony calculated?

Alimony, as opposed to child support, is not as definitive and is based on a number of factors including the actual need of the party, the ability of the other party to pay, the duration of the marriage, the age, physical and emotional health of the parties, the standard of living established in the marriage, the likelihood that each party can maintain a reasonable comparable standard of living, as well as a number of other factors.

In New York, alimony is called maintenance. Maintenance or alimony can be awarded for an indefinite or definite period of time. There are no fixed "guidelines" as there are with regard to child support. Many factors are considered by the Court.

How long must I pay or can I receive child support?

Generally, a parent is liable to provide support for his\her children until the children attain the age of 21, unless the children become emancipated before they attain the age of 21. Examples of emancipation event include engaging in full-time employment, marriage or entry into the military service.

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