FAQs: New York Family Law
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 obtain a divorce without consent. The no-fault divorce clause adopted by the State of New York in 2010 allows for one spouse to obtain a divorce without the consent of the other. The no-fault grounds are called, “irretrievable breakdown of the marriage for a period of six months or more.” A litigant is not required to prove that the marriage is irretrievably broken. Merely making the statement is enough to obtain a divorce. No proof is necessary.
What is a no-fault divorce in New York?
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 all terms.
How long is the divorce process in New York?
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 New York 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.
Can divorcing spouses in New York both use the same lawyer?
No. The law prohibits attorneys from representing both parties in the divorce. However, the goal of each attorney is to work with the other 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.
In New York, does a father have custody and visitation rights if he was never married to the mother?
To receive paternal rights which would allow you to obtain 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 either by signing an acknowledgment of paternity or obtaining an order of filiation from the court before custody and visitation rights can be addressed.
What’s the difference between joint legal and joint residential custody in New York?
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. The person who has the majority of the overnights in a given year is the parent with primary residential custody. When you hear the term “residential 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 in New York?
Yes. Joint (shared) physical custody means that the child lives with each parent as close to one-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 is a paternity action in New York?
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.
How does child support work in New York?
New York law states that both parents are financially responsible for supporting their child until the child is 21 (unless the child gets married, joins the military or is 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. The court uses this information to make a determination as to how much a non-custodial parent (the parent with whom a child lives with less of the time) will pay the custodial parent (with whom the child lives most or all of the time). 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. You should consult with an experienced New York City divorce or family law attorney.
In New York, how can I receive child support from the other parent?
You can receive the money directly, by income execution or through the Support Collection Unit (“SCU”). Direct payment can be made by cash, check, money order or direct deposit. Payment made by income execution means that the payor’s employer sends the money directly to you. Payment made through the SCU means that the payor or the payor’s employer pays the SCU and the SCU sends payment to the custodial parent.
In New York, can I obtain child support without filing for divorce?
Yes, Child support can be obtained without filing for divorce. The family court can grant an order of support. You can file a petition for child support and child support add-ons in the family court. You should speak with an experienced child support attorney prior to filing.
Why would I want payment through the Support Collection Unit?
There are many benefits for the payee (person receiving child support) to have payments made through the SCU. First, you no longer have to deal directly with the other parent regarding payment. Second, the SCU can enforce payment by way of an income execution, garnishing a bank account or intercepting a tax refund without you filing an enforcement proceeding. Third, the SCU can report the unpaid support resulting in the suspension of the payor’s driving license, professional and recreational licenses. You can also receive cost of living increases (COLA) without filing a new court proceeding.
Why do I not want my payments to be made through the Support Collection Unit?
The reasons for not wanting payments through the SCU for the payor are mostly the same as to why the payee wants payments made through the SCU. If payments are made through the SCU, failure to pay $4,000 in arrears or more than 4 months of past due child support, could result in an income execution, suspension of your driver’s, professional and recreational licenses. Payment through the SCU can make it easier for the custodial parent to obtain an increase. Last, a record of your failure to pay child support through the SCU will be sent to credit reporting agencies such as Equifax and Experian.
Will I receive an increase in child support if I earn more money since the time of the original order?
A modification to the original child support order may be obtained based on a variety of factors. Unless waived in a written stipulation, if it has been three years or more since the divorce or court order, or either parent’s income has changed by 15% or more, you may obtain a modification of your child support order. If the child support payments are collected by the SCU, you may have an automatic review after a set period of time. In either case, you will still have to prove a change of circumstances in your situation and income. An experienced New York City child support lawyer can help you with this.
Can a parent be forced to pay for a child’s college in New York?
Yes. Even if you do not agree, a support magistrate can force you to contribute a discretionary amount towards the cost of college for your child. Whether the cost of college is ordered as well as the amount, is in the discretion of the support magistrate and is not an automatic payment. If there is no prior court order and you have not previously agreed to pay for college, the court will look at your income, expenses, your child’s grades, the income of the other parent and your total financial circumstances before deciding whether to order an amount to be paid for college. Usually, the court pro-rates payments based on a calculation of each parent’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.
How does alimony work in New York?
In New York, “alimony” is called “maintenance.” Maintenance paid while the divorce action is pending is called temporary maintenance or pendente lite maintenance. Post-divorce spousal support is also 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.
If my spouse has property solely in his or her name, does that mean I won’t get a share in the property?
It depends upon when the property was acquired. If the property was acquired prior to the marriage, you may or may not be entitled to a share of that property. When couples get divorced, their property is divided into separate and marital property. Separate property is anything acquired before the marriage. With the exception of third-party gifts, inheritances and personal injury awards, marital property is any property or assets acquired after the marriage, regardless of whose name is on it. If the separate property appreciated during the marriage, you may have a claim to a portion of the appreciation. Anything considered marital property will be subject to equitable division by the court system. This means that if your spouse’s property either appreciated or was acquired after you were married, you may receive a share.
If you have other questions regarding your divorce, contact the Law Office of Vivien I. Stark, P.C. today. Vivien Stark is a family law and divorce lawyer with over 30 years of experience in marital law. She serves the five boroughs New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) 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.
Do I have to move out of my home while a divorce or custody case is pending in New York?
It’s common to feel uncomfortable residing in the same house as your soon-to-be-ex once divorce or custody 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 doing so, may be damaging to your case. In a custody case, leaving the home may negatively impact your chance of obtaining sole or joint legal custody. Once the lawsuit is commenced, without written consent or a court order, you are prohibited from making major purchases, withdrawing large sums of money or changing your medical or life insurance while the case is pending. Consult with one of our attorneys before you move out of your home.