Divorce FAQ's
Comments
and questions on this site are for informational
purposes only. They do not constitute
legal advice. You should contact an attorney for further
information.
Questions
What
issues have to be determined before I obtain
a divorce?
Do you handle uncontested or no fault divorce?
Do
I have to prove fault to obtain a divorce?
Do I need a new Will if I am obtaining a Divorce?
How
is child support calculated?
What
are my children's rights?
Can
my children be relocated?
Do
you offer consultations?
What
will this cost me?
Answers
What
issues have to be determined before I obtain
a divorce?
A matrimonial matter may involve one or more
of the following issues:
- divorce
- custody of minor children
- child support
spousal support or alimony, and
- the equitable division of marital assets.
The
first goal of our office in assessing your particular
matrimonial situation is to determine how many
of those issues exist and which, if any, are
likely to cause heated disagreement and/or litigation.
In many cases, the isolation of the one or two
difficult issues and the development of an effective
strategy to resolve those issues can result
in the negotiation of a settlement rather than
the litigation of all issues.
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Do You handle Uncontested or No Fault
Divorce?
Our office represents many clients who wish
to obtain an uncontested or a no fault
divorce. We handle those matters both
in our office and through a separate
dedicated website,
www.NYDivorceNow.com. For those
clients using our separate dedicated website,
we offer a lower fee structure. To
determine if you are able to use that
service, please visit
www.NYDivorceNow.com.
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Do I have
to prove fault to obtain a divorce?
Unlike
most other states, New York does not allow a
divorce based upon irreconcilable differences.
To obtain a divorce in New York married
partners must either
-
Consent to the terms of
a separation agreement and live pursuant to
that agreement for one year before obtaining
a divorce. This is usually referred to
as a "no fault" or "consent" divorce; or
-
One partner must agree to be at
fault in divorce papers filed with the court
system. ,or
-
one partner must prove that the other
partner is guilty of fault.
The fault grounds
for divorce in New York include adultery, abandonment
and cruel and inhuman treatment. If the other
partner contests or disputes the fault grounds,
a trial will be conducted before either a judge
or a jury on the issue of fault.
The
fault issue is most often leveraged for economic
gain. Specifically, the party contesting the
divorce will not consent to the divorce unless
certain economic terms favorable to that party
are included in a separation or settlement agreement.
This issue does result in a substantial amount
of litigation in New York and must be addressed
with counsel prior to effecting a strategy for
resolving your case.
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Do I need a new Will if I am obtaining a Divorce?
While your divorce process is pending,
your inheritance rights and your spouse's
inheritance rights do not change in New York, because
you are still married. For example, if you have a
will that provides that your spouse receives all of your
property upon your death, and if you do die while a
divorce is pending but not completed, your spouse will
still inherit all of your property.While a divorce
action is pending, you can take steps to change how your
estate is handled. Although you cannot completely
disinherit your spouse, you can limit the percentage of
your property that would be inherited by your spouse.
We do recommend that all clients prepare a new Will
and a health care proxy and living will after divorce.
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How is
child support calculated?
Child support in New York is based upon
a statute know as the Child Support Standards
Act, commonly referred to as the CSSA. The CSSA
defines "income" and assesses a percentage
of that income as "basic child support"
to be paid to the custodial parent by the non-custodial
parent. In addition to basic child support,
there are mandatory "support add ons",
including the cost of health insurance premiums,
unreimubrsed medical expenses, and daycare expenses,
and discretionary add ons, including college
expenses.
The
calculation of child support is often contentious.
A determination of custody must precede the
determination of child support and many parents
are surprised to find that joint custody does
not necessarily result in an equal sharing of
the child support burden, even when the parents
equally divide their custodial time. The actual
determination of child support based upon the
statutory percentages is often treated like
a simple calculation. However, the determination
of what is or is not income, the opportunity
to cap basic child support at a statutory $80,000
joint income level, and the division of add
on expenses are often complex issues that require
a careful analysis of each family situation
in conjunction with the many written judicial
decisions addressing these aspects of the CSSA.
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What
are my children's rights?
For our office, custody disputes are considered
the most difficult aspect of matrimonial practice.
Children are often the victims of the emotional
chaos that results from the break up of a family
and the bitter litigation that can ensue. Attorneys
in our office have worked extensively as Law
Guardians, or attorneys appointed to represent
children, in Family Court and Supreme Court.
As a result, our focus has been and will remain
on negotiating resolutions that do the least
possible harm to the children of our clients.
In every litigated custody matter, the Court
must determine the best interests of the children.
To assist in that determination, in all litigated
Family Court matters and in most litigated Supreme
Court matters a Law Guardian will be appointed
by the Judge to represent the children. A Law
Guardian is an experienced family law attorney
who represents only the children's interests
in a custody dispute.
When
parents litigate custody, it is our office policy
to request that a forensic examination of the
parties, children, and other relevant people
be conducted. A forensic examination is an interview
and examination of the children, parents, and
other relevant people by a psychologist or other
equally qualified professional for purposes
of providing an expert opinion to the court
regarding custody. The parties may be responsible
for the payment in whole or in part of the forensic
examination. This additional expense, however
burdensome, often greatly aids the court and
the attorneys in effecting a proper resolution
of a disputed custody matter. Many courts require
a forensic examination in all disputed custody
matters and many judges greatly rely upon the
recommendations made by the forensic evaluator.
The
recommendations of the Law Guardian and the
forensic evaluator will be impacted by the wishes
of your children. Those wishes will be given
more weight as the age of the children increases.
There is, however, no magic age at which every
court will simply dispense with its role of
determining the best interests of the children
and allow the children to dictate who their
custodial parent will be. Moreover, any parental
manipulation of children on this issue which
results in an alienation of the children's affections
for the other parent will likely be identified
by the Law Guardian and the forensic evaluator
and may result in a negative custody resolution
for the parent who has engaged in the manipulation.
It will also result in lasting psychological
harm to the children and should be avoided in
all circumstances. As with all other issues in
a matrimonial matter, custody litigation can
be avoided whenever parents are able to arrive
at their own agreement regarding their children's
best interests
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Can my
children be relocated?
Courts
in New York are not unmindful of the realities
of contemporary society; we are a mobile civilization.
Given that mobility, there is no blanket prohibition
upon the relocation of children when parents
are divorced or separated. However, the circumstances
under which a court will allow a relocation
have varied significantly over time and each
case must be judged on the particular facts
of the family involved.
If
both parents are significantly involved in the
children's lives, and the custodial parent does
not have a compelling reason for a relocation,
a court will likely order that the children
not be moved. Under such circumstances the custodial
parent can either move without the children,
resulting in a change in custody, or abandon
the plan to relocate. However, if a non-custodial
parent is not involved with the children and/or
is not fully supporting the children and the
custodial parent has a valid reason for a relocation,
such as a job transfer, the relocation of a
new spouse, or a relocation to join close family
members who have offered support, a court is
much more likely to allow a relocation. In all
cases, a relocation should only be considered
after a careful analysis of the particular facts
affecting your family in conjunction with an
analysis of the most recent cases involving
relocation.
An
issue related to relocation that often arises
is that of multi-state custody litigation. If
you or your spouse relocated to New York or
from New York, what state will hear a custody
dispute? New York State is a signatory to a
statute that allows New York to exercise jurisdiction
and hear a custody case only when New York is
the home state of the children involved. Home
state determination is based upon residency,
contact, family ties, and other facts. This
issue should be thoroughly reviewed prior to
commencing litigation; the commencement of jurisdiction
when New York is not the home state will only
waste a parent's scarce resources and delay
the proper resolution of a custody dispute.
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Do you
offer consultations?
Our office offers an initial consultation
for one hour at a fee of $250.00. To
maximize the client's
use of the consultation time, prior to scheduling
the consultation either an attorney or a paralegal
will outline firm policies for a potential client,
answer basic questions pertaining to our practice,
and obtain personal information regarding the
client's particular situation.
Payment for this consultation is due
at the time services are rendered.
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What
will this cost me?
Our office works on a team basis and utilizes
advanced technology to maximize our ability
to represent our clients efficiently and in
a cost effective manner. Working on a team basis
with advanced case management software assures
that an attorney or paralegal is always available
and sufficiently informed to address your needs.
Working on a team basis also allows our office
to use various personnel at different billing
rates to provide a blended bill with a lower
effective hourly rate than that of senior attorney.
The hourly rates in our office for attorney
and paralegal services do change over time.
The current rates billed by our office range
from $125.00 per hour to $295.00 per hour.
As a matter of law, the firm and each client
must sign a retainer agreement prior to our
representation of the client. Each case is different
and we attempt to assess the legal needs of
each client at the time of our initial consultation.
After doing so, we set an initial retainer amount
which will usually range between $2500.00 for
a simple family court matter to $3500.00 for
a contested matrimonial matter. There are, of
course, cases that result in lower and higher
retainers than those set forth.
A retainer is an advance payment of fees that
remains the client's money. Retainer funds are
placed in an escrow or trust account and remain
the client's funds until billed against. As
a matter of law, we must remit a bill to all
active matrimonial clients at least every sixty
days. It is our firm policy to remit regular
monthly bills to all active matrimonial clients.
Thus, our clients are informed on a monthly
basis of the time that has been spent on their
matter and the resultant bill to their escrow
funds.
While attorneys may, and many do, charge a minimum
fee for the matter on which they are retained,
our office does not do so. If your case is resolved
and there are retainer funds remaining in your
account, those funds will be returned to you.
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