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FAQs: New York Family Law

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Does my spouse need to consent to a divorce in New York City?

In short, no. When someone files for a divorce, the other spouse has a certain amount of time to respond. If the spouse does not respond in the given time frame, the court may grant a default divorce. If your spouse does respond, you can still file for divorce without consent. The no-fault divorce clause adopted by the State of New York in 2010 allows for this.

Do I have the rights to a child’s custody if I was not married to the mother?

To receive paternal rights, which would allow you to take custody of the child, you would need to first establish paternity. When a child is conceived during a marriage, the husband is assumed to be the father. Otherwise, paternity must be established by either by signing an acknowledgment of paternity or obtaining an order of filiation from the court before custody and visitation rights can be addressed.

Can I obtain child support without filing for divorce?

Child support can be obtained without filing for divorce. You will need to speak with an experienced attorney.

Can divorcing spouses both use the same lawyer?

No. The law prohibits attorneys representing both parties in the divorce. However, the goal of each attorney is to work with the other advocate to reach a fair agreement between parties. If you have been served divorce papers, you will need to hire your own divorce attorney to represent you. Otherwise, you can choose to represent yourself, though this is not advised.

Can I force my spouse to help pay for our child’s college costs?

Yes, this can be a contingency in the child support clause, or can be modified afterwards. If your spouse does not agree to this stipulation, you will have to work with an attorney to enforce payment. Usually, the court pro-rates payments based on a calculation of the spouse’s income. The court may also place a cap on payments for college based on income limits or the college the child will be attending.

My ex-spouse has had an increase in income. Can I get them to pay more for child support?

A modification to the original divorce decree may be obtained based on a variety of factors. If it has been three years since the divorce, or a spouse’s income has changed by 15%, you can obtain a modification. If the child support payments are collected by the court system, you may have an automatic review after a set period of time. In either case, you will still have to prove a change in situation and income. An experienced attorney can help you with this.

If my spouse has property solely in his or her name, does that mean I won’t get a share in the property?

No. When couples get divorced, their property is divided into separate and marital property. Separate property is anything acquired before the marriage. Marital property is any property or assets acquired after the marriage, regardless of whose name is on it. Anything considered marital property will be subject to equitable division by the court system. This means that if your spouse’s property was acquired after you were married, you can receive a share.

If you have other questions on your divorce, contact the law office of Vivien I. Stark, P.C. today. She is a family law and divorce lawyer with over 30 years of experience in marital law. She serves New York City and the surrounding communities and is deeply committed to her clients. Among her accolades, she has been recognized as a top Avvo contributor and divorce attorney with superb ratings. She provides effective representation in matters of divorce and family law.

What is a no-fault divorce?

In New York, a no-fault divorce means that neither spouse is formally blaming the other for the failure of the marriage. “Irretrievable breakdown” (sometimes referred to as irreconcilable differences) is the only reason that needs to be given, as long as it was within six months of filing for a divorce. No-fault divorce often gets confused with an uncontested divorce, but there is a difference. No-fault refers to the reason for ending the marriage. Uncontested, however, has to do with all parenting and financial issues. A divorce is uncontested if both spouses come to a mutual agreement on terms.

How long is the divorce process?

No-fault, uncontested divorces take at least six to eight months from the time the final paperwork is submitted if the courts aren’t backed up and all paperwork is accurate. A contested divorce that is loaded with contentious issues takes much longer. As your New York divorce attorneys, we strive to move things along as quickly as possible without sacrificing precision or a favorable position for you.

How does child support work?

New York law states that both parents are financially responsible for supporting their child until they are 21 (unless the child is married, in the military or otherwise self-sufficient before that time). Child support matters must be resolved before a divorce is finalized. Support is based on a calculation of both parents’ income, inclusive of salary or wages, interest, benefits and other income. In short: anything that would be on your tax return. The court uses this information in making a determination as to how much a non-custodial parent (the parent with whom a child lives most or all of the time) will pay the non-custodial parent (with whom the child lives less often). Child support issues are among the most emotionally charged in a divorce proceeding. Ensuring that children get what they need and what is fair to you is of primary importance.

What’s the difference between legal and residential custody?

Child custody has several parts: residential custody (or physical custody) refers to the place where the child will live and which parent will have the greater responsibility for the day-to-day care and supervision of the child. So, when you hear the term “custodial parent,” that is what is meant. Legal custody refers to decision-making about the child’s future, including education, religion, and health and welfare concerns. Both legal and residential custody can be either sole, in which one parent makes all the decisions regarding the child’s upbringing and with whom the child resides; or it can be joint, in which case, decisions and the child’s living arrangements are shared.

Can custody be shared 50/50?

Yes. Joint (shared) physical custody means that the child lives with each parent as close to half the time as possible. In a 50/50 split of physical custody, the parent with the higher income is still legally responsible to pay child support unless both parents agree to waive the support.

What about alimony?

Maintenance paid while the divorce action is pending is called temporary maintenance or pendente lite maintenance. Post-divorce spousal support is called maintenance. It can be paid for a specific period of time or tied to an event such as death or remarriage. Since the Tax Cuts Jobs Act (TCJA) went into effect, maintenance (alimony as it is referred to by the IRS) is no longer tax deductible to the payor or taxable income to the payee unless the order was entered prior to the effective date of the TCJA.

Do I have to move out of my home?

It’s common to feel uncomfortable residing in the same house as your soon-to-be-ex once divorce papers have been served; however, moving out comes with a set of issues. Resist the urge to pack up your stuff (and take other items that may be considered part of the household), because in doing so, you could be leaving yourself wide-open for a number of unexpected and unpleasant surprises. Consult with one of our attorneys before you move out of your house.

What is a paternity action?

Paternity actions are used to establish whether a man is the biological father of a child. They may be filed by a mother seeking child support or a man who believes he is the father of a child and wishes to establish his parental relationship.

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