Matrimonial and Family Law
There is no question that Divorce is a messy business. There are few events in one’s life that are as stressful and life altering. It is our objective to reduce this stress as greatly as possible by quickly resolving conflict. Our firm will guide you down a path of examining your case objectively so as to make informed business decisions when it comes to your assets.
As to custody, whether in a divorce action, or an action in Family Court, trials can be heartbreaking. We will always seek and guide to you to first seek a resolution that both parents can live with. However, if this is not a possibility, we will vigorously represent our client’s position to do what is in the child’s best interests.
Our attorneys are tough, experienced, tactical and respected. Please see what our clients say about us. (click here for client recommendations)
This rest of this section of our web site is designed for you, the potential client, to gain valuable information in assessing your matrimonial or custody case. This page goes over grounds for divorce, equitable distribution, the difference between contested and uncontested divorce, and basic child custody support issues.
Alexander E. Sklavos, Esq. heads up the law department. Please see the firm resume for his qualifications. Mr. Sklavos works closely with his support staff as he has for over 20 years in obtaining the best result possible for his clients. Please feel free to call at anytime to schedule an appointment for a free consultation.
GROUNDS FOR DIVORCE
New York was the last holdout in the country – while grounds are technically required, we now have Domestic Relations Law 170(7) which states that the moving party may plead an irretrievable breakdown of the marriage for six months or more to obtain a divorce or a judicial separation. This is almost always the case.
There are two methods by which you can become separated from your spouse. The first is a court action commenced in the State Supreme Court. The Plaintiff in such an action must have grounds for a separation that are the same as those for a divorce. In addition, there is an additional ground for separation, which is the defendant neglecting or refusing to provide adequate support to the movant or to the children. The action for Separation is commenced by, the filing of a Summons and Complaint and then moving forward with a court action in front of a judge.
After a one year period the movant may move forward for divorce if he/she substantially complied with all of the conditions of the separation judgment.
The second and much more common way of becoming separated, is by agreement between the parties. The parties agree in a document, which is essentially a binding contract, to all of the conditions of divorce. Issues concerning separation of property, living separately, custody of the children, and child support are all addressed in a separation agreement. This process involves negotiation and full disclosure between the parties. More specifically, each party must fully disclose all of his or her assets for the separation agreement to be binding. After the separation agreement is properly signed and acknowledged, either party may move for divorce after one year. The moving party must have complied substantially with all the terms and conditions of the separation agreement.
While common in the past, since the passage of DRL 170(7) allowing essentially a no fault divorce, this is no longer a common tool.
UNCONTESTED DIVORCE vs. CONTESTED DIVORCE
“Uncontested divorce” effectively means an action where the parties agree to be divorced have resolved the surrounding issues. The parties either agree immediately before going to a lawyer or lawyers, or agree after a short period of negotiation. It is extremely important that both parties fully disclose all of their assets. Lack of full disclosure can be grounds for overturning a finding of divorce.
Typically, the parties agree that they wish to be divorced and they visit a lawyer. It is very important that each party is represented by independent counsel. One lawyer cannot represent two parties in this proceeding. If both parties wish to hire only one lawyer, the lawyer cannot take sides and cannot advocate for one party. Going forward, the parties enter a settlement or separation agreement which is signed and acknowledged in the form that would entitle it to be recorded as a deed. One year later (in the case of separation) either party may conform the agreement to a divorce.
Uncontested divorces can also come out of divorces that were initially contested. If a spouse files a Summons and Complaint for divorce against another spouse, and the parties agree on all of the issues, a stipulation can be signed placing this matter on the uncontested court calendar.
Since July 19, 1980 New York joined a majority of states in providing for the distribution of marital property upon the termination of marriage. New York uses a system that is called equitable distribution. Equitable distribution will not occur unless the marriage is actually terminated. Separation is not enough to equitably distribute the property.
Property that is subject to equitable distribution by the Court, is “marital property”. Marital property is defined as all property acquired by either or both spouses commencing from the date of the marriage and continuing until the execution of a separation agreement or the filing of a matrimonial action, regardless of in whose name the property is held. There are two exceptions to this definition: 1) property which the law defines as “separate property”, and 2) property which the parties have determined by formal agreement to be “separate property.”
Essentially, equitable distribution means that the property will be distributed fairly. This does not mean that the property will necessarily be split 50/50, however this is very often the result. Unlike “community property” States, where all marital property is split 50/50, New York looks at what is equitable or fair to both parties after taking into consideration a great many factors such as the length of the marriage, the standard of living during the marriage and the education and/or professional licenses obtained by a spouse during the marriage.
MAINTENANCE OR ALIMONY
When the Equitable Distribution Law came into effect, “alimony” became known as maintenance. Before equitable distribution was instituted, alimony was awarded to the spouse having economic need until the death of either party or the remarriage of the dependent party. In 2016 New York passed a mandatory maintenance statute that takes into account the parties different salaries and child support obligations. Click here to go to our support calculator.
Under the law, neither party has a presumptive right to have custody of children of the marriage if both parents are living. Unlike other jurisdictions, New York does not have any presumptive right that the parties share joint custody of the child. However, joint custody can be granted if, and only if, the parties agree. The underlying factor in making any custody award is the “best interests of the child” after considering all circumstances. Each case is decided upon its own merits and generalizations do not apply. If there is a custody battle, very often the court will appoint an attorney for the children. The child’s attorney represents the interests of the child and will interview all parties, review all records including school records, medical records, etc., and report his or her opinions to the court. The court in addition may also order what are called forensics. Forensics essentially is a psychological evaluation of the child and the parties involved in the action. Very often parties will obtain their own forensic evaluator to present to the court. The forensic examiner renders an opinion as to the best environment for the child(ren). Custody proceedings are not limited to divorce actions. An action for custody can be brought prior to or subsequent to a divorce action in the New York Family Court. A custody action considers only what is in the best interest of the child and will not get into the grounds for a divorce. The Family Court has strong and sweeping power to determine issues of custody and child support.
Child support is the responsibility of both parents. However the parent that lives with the child does not have to make an actual payment. The amount of child support is based on combined parental income up to $143,000.00 (as of 2017) (“the cap”) Where the total income of both parents exceed the cap, the law permits, but does not require, the use of child support percentages in calculating amounts due on income over the cap. [click here for our support calculator] However, very often judges will consider the total income of both parties. The Child Support Standards Act provides for the following percentages of the combined parental income to be paid as child support. 1 child 17% of combined parental income 2 children 25% of combined parental income 3 children 29% of combined parental income 4 children 31% of combined parental income 5 children no less than 35% of combined parental income Each parent shall pay their proportionate share, based on the ratio of their individual income to the total income amount. Payments are made in either weekly or monthly payments. If the spouse who owes child support does not make timely payments, the payments can be turned over to the Child Support Collections Unit, an arm of the New York State Family Court. There are solutions such as garnishing wages, or even further court action, including contempt of court, that are available to the aggrieved spouse. Click here for the official New York child support standards chart. https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf
ADVICE & DISCLAIMER
All of the information contained on this web site is not meant to be advice, nor should it be followed. This is meant merely as a helpful tool and as a starting ground for a spouse or parent who is in need of direction. Each case and matter is different. We highly suggest the retention of counsel before engaging in any of the matters discussed. This firm does not represent nor warrant the accuracy of any of the information contained herein, nor should it be relied upon. Please feel free to contact this office by either e-mail at email@example.com or by phone. We are eager to help you