FAMILY LAW FAQ

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Going through a divorce or custody dispute can be an extremely stressful time, and sometimes you need the reassurance of answers right away. I’ve compiled this Frequently Asked Questions page from many of the questions I get from my clients to help those who may be seeking immediate information. However, as you read through this text, I want to advise that nothing provided on this page should be taken directly as legal advice, and is only meant to provide you with a general idea of how certain situations may play out during a divorce. If you have any specific questions about your divorce, regardless of what part of New York State you live in, I’m always just a phone call away: (716) 898-0849

 


Family Law FAQ

Before marriage

When am I able to remarry?

Before a person can legally remarry in the State of New York, a judge must sign a judgment that contains the court order for the dissolution of marriage along with the precise terms of the divorce. Once the judgment is signed, the court clerk enters the judgment into the court record and a person may safely remarry.

What is a prenuptial agreement?

A prenuptial agreement is a contract between you and your future spouse. The prenuptial agreement is entered into before marriage.

In the prenuptial agreement, you and your spouse reveal the details of your individual finances and property owned before getting married. Afterword, you establish the rights and responsibilities each of you will have during the marriage and how you will divide your money and property in the case of divorce or the death of one or both of you.

Although New York law determines how property is divided if a marriage ends in death or divorce, one of the reasons a prenuptial agreement is beneficial is because it allows you and your spouse to take control over your property and assets and determine the best way to divide your property. In other words, so long as the prenuptial agreement is valid, New York law respects the agreement.

Should I consider a prenuptial agreement?

Although it is understandable for a person to not want to plan for the end of the marriage before it even starts, prenuptial agreements are important. In five specific situations, however, prenuptial agreements are vital:
(1) if you have substantial assets;
(2) if you are looking to marry for the second or third time and may be a little nervous;
(3) if the idea of divorce is frightening to you and if that possibility were to occur you prefer the process be simplified;
(4) if you are due a significant inheritance; or
(5) if you have a stake in a partnership.

In these five sceneries, it is likely that a divorce will have a serious, financial-shattering impact. If the worst-case scenario does occur and the marriage tragically ends, a prenuptial agreement could mitigate the damage that would have otherwise been done to your finances.
To be clear, even if one of these five situations does not apply to you, a prenuptial agreement will nevertheless be beneficial.

What are the requirements for a valid prenuptial agreement?

In New York, a prenuptial agreement must be properly acknowledged or witnessed. Proper acknowledgement establishes the identity of the people signing the agreement. Additionally, the added formality encourages people to carefully reflect before agreeing to the provisions of the agreement.

Furthermore, even if the prenuptial agreement is properly acknowledged or witnessed and contains all the necessary formalities, courts in New York may nevertheless decide the agreement is unenforceable in four particular situations:
(1) if there is any evidence that either party was coerced into agreeing;
(2) if either party failed to fully disclose his or her finances;
(3) if either party lacked independent counsel; or
(4) if the provisions within the prenuptial agreement are so unfair that it is considered unconscionable.

In each of these four situations, a New York court will make a decision based on the totality of facts and circumstances.


before starting divorce process

When and how should I tell my children about the divorce?

This conversation is understandably difficult, but also very important. The conversation is dictated largely by the age of the child and the overall situation. For younger children, because they do not have as good of an understanding of time, less notice is needed. For instance, explaining to a pre-school age child that his father will move out in several weeks may be sufficient. On the other hand, an older child will need more time to adjust so it is important to provide the older child with a few months advanced notice.

Regardless of the age, it is very important that you are in a position where you can sit down and talk to your children in a calm manner. Children may have many important questions such as where are they going to live, where will the pets live, and why is the divorce happening. Before initiating the conversation, it is very important that you can comfortably and calmly answer these questions.

Ideally, it is also important for both parents to tell the children about the divorce. Although there is a temptation to reveal the legitimate gradiences that led to the divorce, if possible, it is important to convey the message to the children in a united front. However, if you fear your spouse or if there is a history of domestic violence, then the safety of yourself and your children must be prioritized above everything else. In such cases, conveying the message to the children as a united front is simply not possible.


during the divorce process

Temporary Agreement

During the divorce, Should I come up with a temporary agreement about where the kids will live during the divorce process?

Yes. At the beginning of the divorce process, it’s important to come up with a temporary agreement about how you will share time with your kids. It is important to complete this agreement as soon as possible to ease your children’s insecurity.

New York law requires the agreement to be in writing and state the arrangement is temporary. If the language indicating the arrangement is temporary is not included, there is a risk that a New York court may hold you to the agreement for the long-term.

How long does the temporary agreement last for?

In New York, generally, a temporary agreement is valid until the next court appearance and then it can be extended by the court at that time. A temporary order may transform into the final order if it is incorporated into the court’s final decision.

Alimony

Am I entitled to Spousal Support also known as alimony?

Courts in New York may award spousal support to one party. Spousal support is particularly likely after a long marriage or if one spouse gave up career plans to support the other spouse or take care of the children.

Can alimony be awarded to either the husband or the wife?

In New York (like every other US state) a husband or wife may be ordered to make alimony payments. In a landmark Supreme Court decision, Orr v. Orr (1979), the Court invalidated a law imposing alimony obligations on husbands but not on wives. The Court reasoned that because the law provided for different treatment on the basis of gender, it could not withstand constitutional scrutiny.

Custody

At what age is a child subject to a custody and visitation order?

In New York, a child is subject to an order directing custody and visitation until the child reaches the age of 18. However, under New York State law, a parent must continue making child support payments until the child reaches the age of 21.

As a Grandparent, may I obtain custody over a biological-parent?

In Bennett v. Jeffereys, the New York Court of Appeals ruled that a non-biological parent, such as a grandparent, may only obtain custody over a biological parent if two conditions are established.

First, the New York Court of Appeals stressed that a grandparent seeking custody must establish that “extraordinary circumstances” exist which require courts in New York State to order custody with the grandparent over the biological parent.

Under New York Law, extraordinary circumstances are present where the child is abandoned; a parent signed a legal document stating the child may be adopted; a parent neglected or abused the child; a parent is being or has been deported; a parent is in prison for a long time; or other serious acts which may affect the child’s well-being.

Once extraordinary circumstances are established, a court in New York State must find that granting custody to the grandparent would be in the child’s best interest. The “best interest of the child” standard is fact specific and highly dependent on the quality of the attorney making the arguments. New York courts will look to all relevant factors including the grandparent’s financial information; health and age. The law in New York State provides courts with great discretion to examine many more factors beyond those limited here. Additionally, New York courts, depending on the child’s age, may ask the child what he or she believes to suit his or her best interest.

As an aside, this is the law throughout all of New York State. In other words, it is not relevant whether you live in Geneva, Penn Yan, or Lyons. The law is consistent throughout the State of New York.

Is there any way to change the custody arrangement?

Generally, courts in New York State prefer not to change custody. Under New York law, however, if there has been a substantial change of circumstances, which based on the totally of the circumstances requires a change in custody, a court in New York will modify the custodial agreement.

In determining whether there has been a “substantial change of circumstances,” courts in New York take a “case-by-case” approach and pay particularly close attention to the unique facts and circumstances. Although the standard is highly fact-specific, there are several examples of what constitutes a “substantial change of circumstances.”

First, courts in New York State have found a substantial change of circumstance where the “custodial parent” (the parent with primary custody of the child) is moving outside of New York State and the move will make it almost impossible for the non-custodial parent to maintain a meaningful relationship with the child. For example, if one parent living in Geneva, New York decides to move out of the state without securing consent from the other party, the act will deemed a violation of the court order.

Another example courts throughout the State of New York recognize is where the parent with custody of the child has been engaging in activities that may be considered harmful to the child. This could include the custodial parent leaving the child unattended during the evening while the custodial parent is out with friends or even working at a job with midnight shift hours.

Child Support

What is child support?

New York law defines child support as a payment by one parent to the other parent for the support of their common child. In New York, courts often order the noncustodial parent to make the payment to the custodial parent. However, courts in New York State have the authority to order the custodial parent to provide child support payments to the non-custodial parent.

The reasoning underpinning child support in New York State is the child’s best interests is served when both parents provide economic support for their common child. Based on this reasoning, courts throughout New York State  will order non-custodial parents to pay child support even if a custodial parent is capable of supporting a child without financial assistance.

Critically, attorneys practicing in Upstate New York must make sure the child support order is incorporated in the divorce decree or paternity judgment. In most cases, the order will stipulate that the child support payments be made on a month-to-month basis.

Am I entitled to receive child support?

Under New York State law, if you and your spouse have children, the “non-custodial parent” (the parent who the child does not primarily live) could be ordered to pay child support to the parent who the child primarily resides with. Alternatively, if one parent makes much more money, the court may award child support to make sure the child is always taken care of.

How long am I entitled to receive child support?

In New York State, a parent must pay child support until the children reach the age of 21 or until the child support order is modified or extinguished.

My ex-spouse is refusing to access to our common child in violation of the support order. What should I do?

The best course of action is to bring a contempt action to enforce the parenting time order. In extreme cases, it is possible the parent denying parenting time could lose custody. It is possible that if you have been wrongfully denied parenting time, you may be entitled to “makeup” or compensatory parenting time. A New York court may conclude increasing parenting time is an appropriate sanction for your ex-spouse’s denial of parenting time. Again, this is highly dependent on the unique facts and circumstances involved in your case, as well as the particular arguments made by your attorney.

If I am unemployed will I still have to pay child support?

If a parent is unemployed or underemployed, some courts in New York “impute” income to the parent and tailor the child support based on the imputed income. For example, if a parent living in Geneva is out of work and looking for work, a court may impute the parent’s income to be equal to the minimum wage in the State of New York. Courts may also impute the income based on recent work history, occupational qualifications, and the prevailing community earnings levels. For instance, a court may look at the average income of residents in Ontario County and order child support based on that amount.
Because courts in New York have so much discretion in these cases, it is critical that attorneys make quality arguments which shed light on the critical facts concerning the case at hand.

If a parent is voluntarily unemployed or underemployed, on the other hand, a court may base the child support amount on the net income the parent enjoyed prior to voluntarily becoming unemployed or taking a position which resulted in underemployment. For example, following a divorce, if a man leaves a high salary job in New York City for more modest employment in Canandaigua, a court may order the child support payment to be based on the man’s New York City salary because he voluntarily left his position.

My ex-spouse is refusing to pay child support. Can I deny him visitation with the children until he resumes making payments?

In New York, the custodial parent cannot deny the non-custodial parent his or her parenting time because the non-custodial parent has not paid child support. In a New York case, Matter of Stewart v. Soda (4th Dept. 1996), the court held that visitation cannot be terminated solely because a parent fails to pay child support. The court emphasized that “visitation cannot be terminated solely for reasons unrelated to the welfare of the child.” Therefore, terminating visitation due to a failure to pay child support it is an “insufficient basis” to deny visitation.

The New York court’s reasoning is rooted in the belief that child support and visitation are separate issues. This distinction is based on the idea that parenting time is ordered because it is in the best interest of the child to promote love and affection with both parents. When the parents have difficulty managing the visitation schedule laid out in the court order, the appropriate remedy is to seek the assistance of the court. Alternatively, if the non-residential parent is not paying child support, the appropriate remedy may be to garnish the amount directly from the non-residential parent’s paycheck. Put simply, the court does not want to encourage parents to engage in “tic for tac” exchanges which may ultimately harm the children.

The Property after the Divorce

What happens to the property following the divorce?

Under New York’s Domestic Relations Law (Section 236(B)(5)(c) to be specific), “marital property” is subject to “equitable distribution.” where the court distributes the property “equitably between the parties considering the circumstances of the case and of the respective parties.”

What is Marital Property?

Under New York’s Domestic Relations Law, marital property is defined as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.” In other words, marital property is any property you obtained between the time you were married and before you either filed for divorce or agreed in writing to separate from your spouse.

Critically, marital property does not include separate property.

What is Separate Property?

Under New York Law, separate property is not subject to equitable distribution. In other words, separate property will not be divided by the court and will remain in the possession of the person who owns it.
Separate property includes the following categories of property:
property obtained before marriage
property obtained as a gift
property inherited from someone other than your spouse
compensation for personal injuries;
property acquired in exchange for or the increase in value of separate property
property described as separate property by the parties’ written agreement

What is Equitable Distribution and what is the underlying purpose?

A court will look at all the relevant factors and distribute the marital property according to a sense of fairness based on the unique facts and circumstances of the case. Courts in New York have great discretion in distributing marital property. As a consequence of this discretion, it is important to have an attorney who sheds light on the most important facts in your case.

In determining what fairness requires, courts in New York are not required to divide marital property equally. Instead, courts focus on fairness.

In a case almost two decades ago, Schiffmacher v. Schiffmacher (2005), a court in the New York Appellate Division held that the wife was properly awarded 70 percent of the value of the marital savings and investment accounts because the husband had better future income prospects given his advanced degrees. In other words, the husband was awarded substantially less marital property beause the court reasoned that he was more likely to “make up” the money in the future. In contrast, the wife had more limited prospects which compelled the courts to provide her with enough to compensate for her more modest future income.

In many cases, however, New York courts do distribute marital property in a close to equal manner. In one New York case, Lipovsky v. Lipovsky (2000), the New York Appellate Division held the property was appropriately distributed where it was in an equal manner. In this case, the court emphasized that in long-term marriages property should be distributed equally. Specifically, the New York court stressed that both New Yorkers made significant contributions to the marriage. For instance, the husband had worked long-hours while the wife had taken care of the home and raised the children. The contributions of both parties led the court to conclude that an equal distribution of the marital property was necessary.

What if I have an agreement with my husband detailing the way we would like our property to be divided following a divorce?

Married persons have the right to change the classification of property from either separate to marital or from marital to separate, or to transfer one spouse’s separate property to the other spouse. Under New York law, these agreements are referred to as “transmutations.” All transmutations must be made by express written declaration.


MISCELLANEOUS

I am afraid my husband will harm me. What should I do?

If you are afraid for your safety and emotional well-being, it is critical to leave the house and file for an order of protection as soon as possible. The day you file for an order of protection, a temporary order of protection is issued and will last until the next time you are in court. Typically, the court will extend the temporary order at each court date until the case has concluded. Once the case is over, a final order of protection may be issued. The final order may last from one year to several years depending on the severity of the circumstances. If you are in immediate danger call 911.

AgainI want to advise that nothing provided on this page should be taken directly as legal advice, and is only meant to provide you with a general idea of how certain situations may play out during a divorce.