Divorce/Family Lawyer David L. Martin Esq. with Offices in Mineola and Kew Gardens New York
MAJOR CHANGES IN THE DIVORCE LAWS IN THE STATE OF NEW YORK OCCURRED ON OCTOBER 12, 2010. NO FAULT DIVORCE HAS COME TO NEW YORK, BUT ONLY AFTER THE FINANCIAL ISSUES ARE SETTLED MANDATORY TEMPORARY MAINTENANCE FOR THE NON MONIED SPOUSE THE AWARD OF ATTORNEY FEES TO THE NON MONIED SPOUSE TO LEVEL THE PLAYING FIELD NEW RULES MAKING IT EASIER TO OBTAIN AN ORDER OF PROTECTION. CALL ME TO DISCUSS.
Divorce... A Brief Intro:
A marriage is viewed as the economic union of two individuals into one unit. It does not matter who makes it or spends it during the time of the marriage because the parties are seen as one economic union.
The purpose of a divorce is to break up the economic unit. The parties to a divorce will divide the marital estate using equitable distribution.
Before I discuss the issue of equitable distribution, you need to be aware of the fact that a divorce action has two components.
The first component is grounds. Domestic Relations Law 170 (7) was added on October 12, 2010, which read: Irretrievable Breakdown in a Relationship for at Least Six Months (DRL 170 (7): That the relationship between Plaintiff and Defendant has broken down irretrievably for a period of at least six months as long as one party signs an affidavit so declaring. This is the so called no fault divorce.
Let's now discuss the second component of a divorce which is equitable distribution. For purposes of determining what are marital assets and debts, the Courts generally use a start date and an ending date. The starting date is the date of your marriage. The ending date is the date that one of you files an action for divorce. Any assets that are obtained, or any debts that are incurred, during this time period by either party are marital assets and debts. Under the issue of equitable distribution here is a partial list of the issues that come up: The disposition of the marital residence, division of pensions and businesses, division of assets such as stocks, bonds, mutual funds, vacation homes, etc. Division of marital debt such as a mortgage or credit cards, division of vehicles that the parties own including who is going to be responsible for car payments and insurance. A division of the enhanced earnings potential for the obtaining of an advanced degree. Now, under the new temporary maintenance rules, the non monied spouse has the ability to obtain a substantial financial award, pendente-lite (during the time of the divorce process) and beyond. If you are the monied spouse, the statute has language that allows a downward deviation in limited cases. Call me to discuss.
The issue I left out of the list above is that of the children. A divorce involving children raises six additional issues. They are 1. The issue of physical and legal custody. 2. Visitation (parenting time). 3. Child support. 4. Health insurance for the children 4. Life Insurance 6. College.
Let's start with custody. There are two types of custody in the State of New York. The first is physical custody or residential custody and the other is legal custody. Physical or residential custody deals with the issue of who are the children going to physically live with? Legal custody deals with decisions making regarding the health, education and welfare of the children. If the parties have joint legal custody it means that each parent will fully participate in making those decisions for the minor children. The Courts will tell you that joint legal custody only works when the parties have an ability to communicate. The second issue is visitation. There are two ways to deal with this issue. The first is we can say that the non-custodial parent will have liberal visitation away from the marital residence as agreed to between the parties. The other approach is to sit down together and prepare a detailed visitation schedule. That schedule would include regular visitation, holidays, summer vacations, birthdays, etc. The third issue is child support. The amount of child support that a non custodial parent pays to the custodial parent for the basic support of the minor children is governed by statute. Domestic Relations Law Section 240 covers this area. The child support is based upon combined parental income. All income up to $136,000.00 is mandatory in calculating child support. Any combined income over $136,000.00 is discretionary with the Court. The percentage of the adjusted gross income the non-custodial parent must pay for child support is as follows: 1 child 17%, 2 children 25%, 3 children 29%, 4 children is 31%, 5+ children are 35%. There are add ons to child support. These include health insurance premiums, unreimbursed out of pocket medical expenses, day care, and in limited cases, educational expenses. There are other financial issues concerning the children that need to be resolved. These include college and life insurance.
Call the office for a free consult.