In many cases, a divorce settlement can be achieved without the intervention of the court, by some form of negotiation, mediation or mollaborative means.
When spouses are unable to come to an agreement, their case is then presented to the court. A judge has the power to decide issues of divorce, property division, maintenance, support and custody. After the court hears evidence of the specific facts of the case, it will decide these issues based upon statutes (New York Domestic Relations Law) and precedent cases.
We recommend to all our clients that they seriously consider dispute resolution as the preferred method to resolve matrimonial disputes. Many times, the emotional pressures are so strong that the ability of the party to make sound decisions that are in their best interest is compromised.
In most cases, each spouse hires an attorney to handle the divorce. Whether a spouse is negotiating a settlement or presenting a case to the court, he or she needs a knowledgeable and experienced family lawyer to get the benefit of all the law has to offer.
What questions will be raised?
Litigation in court is costly from the financial and emotional perspective. However, certain family matters can only be resolved through litigation.
A matrimonial attorney represents the interests of one spouse in the traditional attorney-client relationship. This is whether the case is actually litigated or just negotiated for a settlement.
A matrimonial action usually involves the following issues:
- Custody (sole or joint) of the children
- Visitation schedules and any exceptions
- Child support calculations, and how payments are handled
- Any restrictions on moving out of the area
- Who will carry insurance on the children
- Which parent claims the children as tax dependents
- Division of property, and how titles and deeds will be transferred
- Division of checking, savings, and investment accounts
- Division of debt
- Indemnification of future debts
- Cash Settlements
Who gets to live in the house during the divorce?
If the spouses have minor children, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don’t have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave. If, however, there are no children, your attorney will address the special challenges of the situation.
Neither spouse has a right to throw out the other spouse. A party can request that the other person leave, but he or she is not obligated to comply. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in.
When both parties own the home, the proper method of getting your spouse to leave is to request it from the court.
If your spouse has committed domestic violence, you may petition a judge for a restraining order. The order may require your spouse to vacate the premises.
How is child support determined?
The parties can stipulate and agree to almost any terms affecting their divorce. The most important exeption are factors that affect the welfare of minor children.
The amount of court ordered child support is determined by applying a percentage to the gross incomes of both parents, according to the number of children in the family. In addition to earnings reported on the most recent Federal Income Tax form, income will include worker’s compensation, disability benefits, unemployment insurances, social security, veteran’s benefits, pension and retirement benefits, fellowships and stipends and annuity payments, as well as certain investment income. The Court may also include income from other sources.
Certain deductions from income are allowed including alimony or maintenance actually paid; child support paid for other children, and FICA.
Once the combined parental income is determined, the non-custodial parent will be required to pay the following percentage to the parent who has custody:
- 17% for One Child
- 25% for Two Children
- 29% for Three Children
- 31% for Four Children
- No Less than 35% for Five or More Children
What is equitable distribution?
Equitable distribuition is a legal term for the method in which marital property is divided after a divorce.
In New York State, property earned by either spouse during the marriage is considered marital property. Each spoouse is entitled to one half of the total value of marital property upon divorce.
Disputes sometimes arise as to whether property was “earned” or was acquired by some other method. Another common reason for dispute is the amount of each spouse’s non-cash contribution to the marriage. Yet another issue of possible contention is a party’s contribution to a spouse’s educational degree of professional attainment.
Through a legal mechanism called “discovery” each spouse is entitled to all documents, records, receipts, statements and all other information that may impact the outcome of the case.
Litigating parties are usually taken aback when very intrusive demands are made by the other spouse for what may normally be consider private and confidential records.
What a judge is most concerned about
Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:
1) Alimony or spousal support;
2) Property division; and, if there are children:
4) Visitation; and
5) Child support.
If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid adversarial divorce litigation. Conversely, if there is disagreement on any of the basic issues, a contested divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a family court judge. The couple may also voluntarily seek alternative dispute resolution methods like mediation or collaborative divorce or they may be ordered by the court to do so. It is important to consult with an attorney before deciding which method is right for your situation. Divorce Litigation The actual legal process for getting a divorce varies by state. However, most marital termination proceedings usually include the some version of the following components: Petition – The filing of the summons and complaint formally initiates divorce proceedings.
Summons & Copmplaint – Formal notice to your spouse about your intent to pursue court action to obtain a legal divorce. The response is the other parties’ acknowledgement the divorce procedure has begun.
Legal Process: Some Definitions
- Motions – A formal request to the court to order some type of action before the trial. For example, in abuse situations it is not uncommon to file a motion for a protective order or restraining order.
- Discovery – The phase of the proceeding where each side gathers information in support of their legal arguments. It is an important phase in contested actions, particularly if you belief your spouse is hiding assets. It includes depositions and interrogatories.
- Hearings & Temporary Orders – In some instances there are questions or situations that need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. For example, if the couple can’t agree about where their children should live during the process they would ask the judge, during a hearing, to decide. Temporary orders generally remain in effect until the final decision is made at the end of the divorce process.
- Trial – A critical court appearance before the judge where the case will be decided. The trial may include witnesses, friends, financial experts, psychologists, as well as other types of evidence including financial records.
- Judgment – The final decision is a judgment. It is not a verdict in the sense the judge assigns blame to either party. It is simply a legal statement of the judge’s rulings on all the issues in question during the trial, such as custody, visitation, support and property division.