Updated on 7/27/20 at 12:48pm with more complete information about divorce.
Number 1: The Basic Issues in a Divorce
Most divorces have to resolve the following issues: (i) Child Custody; (ii) Child Support; (iii) Assets; (iv) Debts; (iv) Spousal Maintenance (a.k.a. alimony); and (v) the emotional impact. Clearly, if there are no children involved or if they are over the age of 21 years of age, then child custody and child support will not be an issue.
Number 2: No Fault Divorce
It has now been 10 years, since New York adopted “no fault” divorce. This means that you no longer have to state a reason for your divorce (what is called “grounds” in legal terms). The only requirement is that you simply state that the marriage has irretrievably broken down for six months or more. This is New York’s version of a “no fault divorce.”
That resolves the grounds, but, in order to get a divorce, you and your spouse still must resolve all the other issues related to your divorce (See Number 1 above). Since all the other issues will need to resolved, your divorce still may take some time to resolve.
In theory, you can still get divorced by stating “grounds”, they are still legally valid, they are: (i) cruel and inhuman treatment; (ii) abandonment of one of the spouses by the other spouse for a period of one or more years; (iii) your spouse is in prison for 3 or more years; (iv) adultery; and (v) living pursuant to a legal separation agreement. However, since the adoption of no fault divorce, very few divorces actually state these other grounds. This is because it is easier and faster to just state that your divorce is a no fault divorce.
Number 3: Extremely Unlikely That You Will Go To Trial
Very few divorces actually go to trial. This is especially true now that there is no fault divorces in New York. Less than 5% of divorces go to trial. However, many divorces will settle on the first day of trial.
Therefore, you and your spouse will eventually settle the case and enter into an Agreement (also called the “Stipulation of Settlement” or “divorce papers”). The Agreement is a contract between you and your spouse and it will set forth all the terms and conditions of your divorce. This will include: dividing the marital assets, responsibility for debts, child custody, child support, parenting time, maintenance, as well as many other items.
It is very important the Divorce Agreement be comprehensive and correct. It is a contract and, although there are exceptions, the Court will expect that you abide by the contract.
Number 4: Equitable Distribution/Property Division
New York is what is known as an Equitable Distribution State. This means that the division of marital assets and marital debts is not necessarily 50/50. Instead, the Court will decide what is “equitable” meaning fair. Yet, in practice, although there are exceptions, the Court will generally divide assets so that they are either 50/50 or very close to 50/50.
The first thing that the Court has to determine is: What is a marital asset? With limited exceptions, a marital asset is all property and assets acquired between the date of the marriage and before the execution of a separation agreement or the commencement of a matrimonial action. If the property was acquired while you were married, it doesn’t matter the form in which title is held. Thus, if you buy a house after you are married, and the deed is in only one spouse’s name, it is still a marital asset. Likewise, just because your spouse owns the car she drives and always drives it, if the car was bought after the marriage started, the car is a marital asset.
What is not considered a marital asset (also known as separate property)? (1) Property that was acquired prior to the marriage;(2) property received as a gift from a 3rd person; (3) an inheritance; (4) or a personal injury award.
It is important to note that separate property can be converted into a marital asset. As a few examples, if you owned the house prior to the marriage, but, during the marriage, you put your spouse on the deed, you may have converted the separate property into a marital asset; As another example, if you received an inheritance of money, and place the money into a joint bank account, you have converted the inheritance money into a marital asset.
Equitable distribution is a complex area. If you or your spouse have assets which you believe should be classified as a marital asset, it is highly recommended that you seek the advice of an attorney.
Number 5: Maintenance (alimony)
Spousal Maintenance (formerly known as alimony). The purpose of spousal maintenance is to give a spouse, after the divorce, economic independence. Maintenance should continue only so long as it is necessary to allow that spouse to become self-supporting.
Similar to child support, there is now a maintenance formula that is used as a guideline to determine how much maintenance should be paid from one spouse to the other spouse. However, the Court can still consider other factors in determining whether or not there will be maintenance and its amount.
Some of these factors are:
- If one spouse was not working and can not become self-supporting, there may be an award of maintenance;
- If there is a great disparity of income and/or property between the parties, there may be an award of maintenance;
- The duration of the marriage; and
- The age and health of the spouses
In addition to post-divorce maintenance, a spouse can request temporary (also called pendente lite) maintenance. This is maintenance that is paid while the divorce case is pending and before the Judgment of Divorce is granted.
Numbers 6, 7, and 8: Child Custody, Child Support, and Parenting Time (visitation)
There are two parts to custody, the first part is who makes the important decisions for the child, the second party is your parenting time with the child.
#6. Child Custody:
In making decisions for the child, there are three basic types of child custody: (1) Sole Custody; (2) Joint Legal Custody; and (3) Joint Legal and Joint Residential Custody.
Sole Custody means that one parent has sole decision-making power for all important decisions concerning the child. That parent does not have to consult with the other parent on these important decisions (although, in some cases, the Court will mandate that any important decisions must at least be given to the other parent prior to making them).
Joint Legal Custody means that both parents share decision-making power. Typically, each parent is supposed to consult with each other prior to making any important decisions concerning the child. In some Joint Legal Custody cases, one parent will make the important decisions involving only some of these decisions, while the other parent will make the rest of the important decisions.
It is important to note, that joint legal custody does not necessarily mean that each parent has 50% of the time with the children. Joint Legal Custody only impacts decision making — not how much time a child spends with a particular parent.
Joint Legal and Joint Residential Custody is where the parents share decision-making power and in addition, they either each have 50% of the time with the children or they have close to 50% of the physical time with the children. In practice, Joint Legal and Residential Custody is pretty rare.
#7. Child Support:
In New York, child support is paid until a child reaches the age of 21 years of age. If one parent has Sole Custody or in the situations where the parents have Joint Legal Custody, one parent has the children most of the time, then the other parent will be required to pay child support.
The amount you pay in child support is computed starting with your gross income. If you are a W-2 employee, you only get very limited deductions, they include, alimony paid to any former spouse, alimony paid to this spouse, child support paid to children from a previous marriage. You also get to deduct the amount you pay in Social Security Tax and Medicare (7.65%). Once you make these deductions, your child support will be based on the result of these deductions.
#8. Parenting Time (Visitation):
If there are children under the age of 18 years of age, a parenting time schedule needs to be established. There are many different parenting time schedules and the one that is agreed upon, should be one that works for you and your family.
Number 9: Uncontested Divorce, Contested Divorce, Collaborative Divorce and Mediation
There are a few different types of divorces: (i) uncontested; (ii) contested; (iii) collaborative; and (iv) mediation.
An uncontested divorce means that the parties agree to get a divorce and that they also agree on all the issues relating to the divorce. In most New York Courts, in an uncontested divorce, you do not need to make any court appearances. Your attorney will file all the appropriate documents with the Court.
A contested divorce means that the parties, at least from the start of the divorce, do not agree on all the terms and conditions of the divorce. With a contested divorce, the parties will need to either arrive at a settlement or have a trial to determine the terms of the divorce. Most divorces are contested divorces.
In mediation, the parties meet with a mediator. The mediator does not represent either party, but, instead, tries to get the parties to agree on all the terms of their divorce. If the mediation is successful, then the parties can get an uncontested divorce.
A collaborative divorce means that you and your spouse agree to get a divorce. However, instead of having the attorneys “fight it out”, you and your attorney, your spouse and his/her attorney all meet to try to come to a resolution. All of the people involved in the meetings (including the attorneys) agree to work together to achieve a settlement. If the meeting is successful, then the parties can get an uncontested divorce.
Number 10: What really happens at Court
In reality, the vast majority of divorces are much different than what you have seen in the movies or on television. As previously mentioned, very few divorces actually go to trial. This means you do not testify and you do not get to “tell your side of the story” to the Judge. This is because trials are very expensive and very time consuming.
What does happen, is that your attorney will meet with the Judge, typically in the Judge’s chambers. Your attorney will advocate for you and give an overview of the important issues involved in your divorce to the Judge. Your spouse’s attorney will also get to speak to the Judge.
The Judge may make some temporary Orders or give the attorneys his/her general opinion of the case. This will help guide the attorneys.
Going through a divorce is complicated and difficult. If you require help, please contact David P. Badanes of the Badanes Law Office.