Frequently Asked Questions
Answers from Our Nassau County Divorce Attorneys. Serving Clients Throughout New York.
Must both parties reside in New York to commence a divorce action in New York?
No, however the residency requirements must be satisfied.
In New York State, there are five ways to satisfy the requirements, which are, in no particular order:
- The parties were married in New York and at least one spouse still resides in New York and has for the previous one year.
- The parties lived as a married couple in New York and at least one spouse still resides in NY and has for the previous one year.
- The cause occurred in New York and at least one spouse still resides in New York and has for the previous one year.
- The cause occurred in New York and both parties currently reside in New York.
- Either party has resided in New York for the past two years.
Is a cause or basis for a divorce required in New York?
Yes. New York has multiple grounds, however, at least one must exist for parties to be divorced in this state.
These grounds include, in no particular order:
- Cruel and inhuman treatment
- Abandonment of one year
- Constructive abandonment of one year
- Parties have lived separate and apart, pursuant to a separation agreement for one year
- Irretrievable breakdown of the marriage for a period of six months
Does New York have no-fault divorce?
No, not officially. The recent law change added the grounds for divorce of irretrievable breakdown of the marriage for a period of six months, which is New York’s version of no-fault.
Can I still obtain a divorce if my spouse will not consent?
Yes. Your spouse’s lack of consent has no effect on your ability to obtain a divorce. Once you commence an action, your spouse needs to be personally served a summons through a Notice of a Summons with Complaint. Once served, he or she will only have a certain amount of days to respond or they will be in default.
What does the court take into consideration when making a custody determination?
There are numerous factors considered by either the Supreme Court (when in conjunction with a divorce) or the Family Court prior to awarding custody to a parent. However, the overriding factor is the best interests of the child.
What is joint custody?
Joint custody is a form of custody which consists of the two parents jointly consulting, discussing, and reaching all major decisions as they pertain to their child(ren). These major decisions typically refer to health, religion, and education and can be extended, depending on the case.
Is the non-custodial parent entitled to visitation?
Yes, there are very limited circumstances where the court will sanction no visitation. However, when necessary, the court will mandate supervised visitation either at a facility and/or by a neutral supervisor.
Can custody and/or visitation be modified?
Yes, but only in the event of a change of circumstances sufficient enough to warrant a modification.
My child resides with me. Can I require the other parent contributes toward child support?
Yes. In New York, each parent has an obligation to support his/her child(ren). The court will require each parent to pay his/her pro-rata share of the total child support.
How is child support calculated in New York?
New York has a statutory formula to calculate basic child support, which is applied to the first $148,000.00 of combined parental income. The court can, but is not required to, apply the formula to income above $148,000.00.
The formula is as follows:
- For one child, the support is 17% of the adjusted gross income.
- For two children, the support is 25% of the adjusted gross income.
- For three children, the support is 29% of the adjusted gross income.
- For four children, the support is 31% of the adjusted gross income.
- For five or more children, the support is 35% of the adjusted gross income.
Is there any additional money I may have to contribute towards the support of my child?
Yes, you may need to contribute to the child support add-ons, which generally include health insurance and child care. Other items that could be included are tuition, summer camp, and extra-curricular activities.
What if the other parent works off the books and/or operated his/her own business and hides income?
The court is not required to use the reported income. The court is authorized to impute or attribute additional income to either parent when the court deems it necessary, based upon lifestyle, expenses, and other factors.
When does child support terminate?
In NY, child support continues until emancipation, which is defined by either the child’s 21st birthday, the child obtaining full-time employment and/or financial independence, the child’s enrollment in the armed forces, the death of the child, or marriage of the child, whichever comes first.
Am I able to modify my child support if I either lose my job, change jobs, or have my salary and income reduced?
It depends on whether you were at fault for the job change. If not, the court can modify your support obligation based on the change in circumstances.
When my child becomes emancipated or changes his residential parent, does child support automatically terminate?
No, a petition for modification/termination of child support must be brought to the court. It is essential to bring this petition as soon as possible, as the court can only provide retroactive relief to the date of filing, not the date of the change.
My spouse was the money earner and bread winner of the family, while I was primarily responsible for raising the children and the upkeep of the house. Will I be entitled to receive support from my spouse after the divorce?
Generally, yes. In New York, spousal support, or maintenance, can be ordered to be given after the divorce. The courts are provided with numerous factors to consider in establishing a maintenance award. The amount and duration will vary based on the facts and circumstances of your case.
Some of these important factors include, but are not limited to:
- Income capability of each party
- Age and health of the parties
- Duration of the marriage
Maintenance is gender neutral and is primarily awarded when a large discrepancy exists between the income of the two parties, primarily when one spouse sacrificed his/her own career for the sake of the other spouse.
I am afraid that once I commence an action for divorce, my spouse will stop providing for me and my children. What steps can be taken to ensure this does not occur?
This is a common problem, and thankfully New York has a type of relief called “pendente lite relief.” This is provided during the pendency of the action to allow the non-monied spouse to continue living during the action in accordance with the lifestyle they are accustomed to.
What types of pendente lite relief can be awarded?
Pendente lite awards can include custody, child support, maintenance, exclusive occupancy of a marital residence, counsel fees, and other forms of bill payment to ensure the marital bills are paid during the action.
My spouse earns the money and can pay for his/her attorney, however, without his assistance I cannot afford an attorney. Will the court order my spouse to pay my attorney?
One type of pendente lite relief is for counsel fees, and the court may direct the monied spouse to pay the other spouse’s attorney. This relief is commonly awarded to “level the playing field” and not let the monied spouse bully and force the other spouse into a bad settlement.
I recently lost my job and can no longer afford to pay child support at its current level. What can I do?
You should immediately file an application in court to modify your child support obligation based on the change in circumstances you suffered. It is essential that the change in circumstances, i.e. your loss of employment, not be voluntary or due to your actions. Furthermore, you need to demonstrate an attempt to procure new employment comparable to your previous employment.
The child support I receive is no longer sufficient to cover the basic expenses of my growing child(ren). Can I request additional support?
Yes. You need to file an application in court to modify the child support obligation based on the increase in expenses for your child(ren).
Are there any other scenarios which would entitle me to an upward modification of the child support I receive?
Yes. Under laws added in 2010, you may be entitled to an increase in child support if three years have passed since the current child support order or the income of the non-custodial parent has increased by 15%.
I do not have custody of my children, however, they recently began living with me. Can I obtain custody?
Yes. You should file for a modification of the custody and visitation order.
If my child(ren) leaves the custodian parent and moves in with me, must I continue to pay child support? Can I receive child support?
Because of the change in circumstances, you should be entitled to a modification of the child support order and be awarded child support based on the income of the other parent.
Despite our court order, my child(ren)’s custodial parent refuses to allow me to exercise my visitation. Are they allowed to arbitrarily decide when I can and cannot visit my children?
No, and you should immediately bring an application to the court to enforce your visitation schedule and rights. Furthermore, you may be entitled to a modification of custody and/or an increase in visitation because of this behavior.
If a change in circumstances occurs which would warrant a modification of child support, does it matter when I file for the modification?
Yes. You need to file as soon as possible. The court can award you the modification retroactively, but only retroactive to the date of filing not the date the change in circumstances occurred.
I have custody of my children and wish to relocate to a new state. Can I move, or must I ask for permission?
Permission must be granted to allow a custodial parent to relocate with the children. The distance of relocation depends on your judgment of divorce or custody order. You need to obtain either written signed consent from the other parent, or permission by the court.
What must be demonstrated to allow for relocation?
There is a litany of case law detailing the numerous factors to be considered by the court in a relocation petition. These factors include, but are not limited to, the best interests of the child, the reasons for relocating, and the ability to maintain and foster a relationship between the child and non-custodial parent.