NY Divorce and Family Law FAQs

Divorce FAQs

How long will the divorce take and how expensive will it be?

A divorce will take as long as the parties fight and will be as expensive as the parities make. This might sound like a glib answer, but it isn’t. The issues of a divorce are money, property and children. If the parties can resolve the issues without recriminations, the divorce can move forward quickly and with a minimum of legal fees. Divorces become long and expensive when the parties fight.

If my spouse is at fault for the failure of the marriage, will I win?

You win a divorce by getting past the anger. Winning is six month after the divorce, thinking, “I haven’t thought of my spouse in six months.” But, sometimes, the fighting becomes the end in itself. Many people feel the need to have the court declare that their spouse is an evil person. It won’t happen. The court is not concerned with who was responsible for the failure of the marriage. From a moral standard point, the court is not concerned with who was at fault. If the parties want a divorce, the court will grant it.

If the house is in my spouse’s name can I still be awarded part of it?

Title is irrelevant in New York divorce law. The real question was whether the house was acquired during marriage. Property acquired during marriage is marital and subject to distribution.

My husband said that because the money for the house came from his salary, he owns it.

This is not true. Money earned during marriage is a marital asset. Any property bought with money earned during marriage is a marital asset.

If my spouse committed adultery will I get the kids?

The issue of adultery is not relevant to custody and visitation. Again, this goes to the point that the court is not going to get involved in the morality of the parties. The court looks to the best interest of the children, without regard to the morality of the parties. The court will look to who can provide better parental time. A non-working spouse is generally in a better position than a working spouse. If both parties work, then other factors will come into play, such as housing, parenting skills, school districts and the like. The other main factor, is who has been the primary care giver. The primary care giver generally will get the custody, unless the other party can show neglect or abuse.

How expensive is a custody fight?

Very. We would only counsel a custody fight if the custodial parent is dangerous to the health, safety and welfare of the child. Otherwise, it is not worthwhile unless there is a reasonable chance of success. The reason why a custody battle is so expensive is that court will bring other actors into the case. The court will appoint a lawyer for the children, who is called the law guardian. The parties will generally pay this attorney fees. Sometimes where there is a non-working spouse, the court will require the working spouse to pay the entire fee of the law guardian. The court will also appoint a psychologist to conduct an examination and issue a forensic report. Again, the parties will have to pay for this. The trial on custody can take several days. All told, it is not uncommon for a custody case to cost at minimum $25,000. Frequently, they cost a lot more.

What happens if I leave the house?

Many people think that if they leave the house they will lose the divorce. This is not true. Staying or leaving will not effect the division of property. It does have an impact on custody. Generally the court will award custody to the primary care giver. If a parent leaves the marital home, it is now tougher for that parent to win custody. The general rule is that the parent who has the children keeps the children.

Can I get alimony?

The concept of alimony was that after divorce a husband would make lifetime support payments to his wife. New York abolished this practice over twenty years ago. Instead, we have a system called “maintenance. With maintenance, the non-working spouse will be paid by the working spouse for a finite period of time. The purpose is to allow the non-working spouse time to get integrated into the workforce. The law’s purpose is to have the non-working spouse become financially self-sufficient.

Can I get my spouse to pay my attorney’s fees?

It depends. If the non-working spouse cannot hire an attorney, or if there is a great difference in income between the parties, the court can order attorney’s fees. Also, if the custodial parent has to bring an action to get child support, the court can award attorney’s fees. But, it is wise not to count on it happening. The court is not required to order the payments. It is a discretionary power.

Where do I go to get an order of Protection?

There are two types of orders of protection. One is issued by the local criminal court and the other is issued by the Family court. An order issued by the criminal court results from an arrest. Once a person has been arrested for a domestic violence crime, the local district attorney’s office prosecutes the matter. The DA’s office does not have to stop a prosecution if a victim wishes to drop the charges. A Family court order of protection results when a person goes to the Family Court and swears out a petition, alleging acts of violence or harassment. There is no criminal penalty and the petitioner can drop the charges at any time.

Can I get child support and if so how much?

Under New York law, support for children is determined by the number of children. For one child the support is 17 percent of the income. Two children is 25 percent, three children is 28 percent. Income is defined an money received, from what ever source. Generally, but not always, this means the amount of money a person earns at work. However, other monies can be counted. If a person lives rent free in an apartment owned by his parents, the value of the monthly rental will be added to his income for child support. If a person parents give him money on a regular basis, then that money will also be included in the income.

If I lose my job to I still have to pay child support?

Absolutely. Losing a child or reduction in income is not grounds for stopping or reducing child support. In fact, there are many cases of fathers deliberately losing their jobs or reducing their income to reduce their child support obligations. Therefore, the court will require the father to prove that the loss or reduction of income was not caused by him.

Is a pension subject to Equitable distribution?

If the pension was earned during the marriage. The rule the court uses to divide a pension is (years in the marriage) divided by (years in the pension). This number is then, generally divided by 50 percent. For example, assume a ten year marriage, and twenty years in the pension. Division of the pension would look like this: (10/20) *.5 = 0.25. The spouse’s share would be twenty five percent of the pension.

I’m in the Military is there any special about military divorces?

Divorces are governed by the law of the state. But, there are special issues and concerns particular to the military. Click on the button on the sidebar for an article on this topic.

My spouse acquired a degree during the marriage, is that marital property?

Yes. All property, to include degrees and licenses. For example, if the medical degree and license are acquired during marriage they are subject to equitable distribution.