New York Family Law Lawyer

Divorce

There is no “how to” for divorce, no play book. There are of course guideposts: the service of the summons and complaint, the request to have a judge assigned (RJI); the first conference with the judge assigned to your case, the net worth statement showing your living expenses, your assets and your debts that is exchanged between the attorneys and filed with the court, and last but not least the retainer you will have to pay to your attorney. See also the website for the New York Courts: http://www.nycourts.gov/

There is no real “how to” for divorce because what you are doing in a divorce is negotiation: you are negotiating with your soon to be ex over the money, the children and the house. Negotiations can be long and drawn out. My personal aim is to help the parties settle their issue while at the same time advising the client so that all decisions are informed decisions.

By the time a potential client comes to my office, he or she has been thinking about the divorce for quite some time. Often for at least a year or more. The client understands that he or she may have to leave the marital home or that the home may have to be sold; that the children will spend time with him or her pursuant to a schedule.

In New York, unless there is “egregious fault” or unless acts of violence occurred (especially if those acts occurred in front of young children) the courts do not consider a party’s faults n when deciding the financial issues. The laws in New York have recently changed to make New York “no fault” state: the complaining party needs to allege that he or she and their spouse have not been getting along for six months or more.

While New York State has laws and formulas regarding prenuptial agreements, child support, spousal support, custody and the division of assets upon divorce; each of these laws and formulas can have different results depending on not only the parties and attorneys involved, but also on the length of the marriage, the lifestyle of the parties, what is “equitable”.

An individual who receives bonus compensation, deferred compensation, stock options and the like needs to have a competent New York family law attorney to assist in negotiating a final settlement.

Even of you are a w-2 earner, it would be perilous to enter into a divorce settlement without an attorney.

Custody

The parents of a child are deemed by New York law to have equal rights to custody. Both parents are liable for child support until the child’s 21^st birthday, subject to some limited exceptions, such as the child getting married before the 21^st birthday, or deciding work full time before the age of majority or joining the army. Most parents agree to support the child until his or her 22^nd birthday because that is when a child usually graduates college.

When the parents of a child decide they no longer want to live together, they have to make decisions regarding the child’s residence and the amount of child support to be paid as well as which holidays and which vacations will be spent with which parent. Each of the parents will say that they want “custody”. If they are talking about “legal custody” then they are talking about decision making. Or they may mean “residential custody” meaning that the child will primarily reside with one or the other parent.

Courts will never give parents “joint custody” if the parents are not able to communicate with each other. Courts will not look kindly on a party who refuses to foster a child’s relationship with the other parent – that the child “does not want to go” is not a good reason for not encouraging the child to have a relationship with the other parent.

Litigating legal or residential custody is an expensive proposition. Not only are the attorneys paid huge sums, there are other costs such as the attorney who is appointed by the court to be the child’s attorney and the psychologists appointed by the court to examine all of the family member. As a New York family law lawyer, I strongly recommend that parties in New York County take part in the free mediation services relating to child custody.

Many parents who find themselves suddenly single after their marriage or relationship dissolves, express a desire to relocate their and their child’s residence to their home country or another state in the United States, or they come from another country to the United States. If the “left behind” parent objects, it is often best to arrive at an expansive access agreement so that the child has the benefit of both parents.

Child Support

New York’s Child Support Standards Act sets forth the amount of basic child support to be paid which support depends on the number of children and the income of each of the parties. As of 2019 there is a “cap” of $148,000.00 on the parties’ incomes for the purpose of calculating how much child support should be paid from the non-custodial parent (the non-primary residential parent) to the other parent. The court will award 17% of income up to the “cap” for one child, 25% of income for two children, 29% of income for three children. Deducted from income prior to these percentage calculations are New York and local taxes paid. Also deducted from a payor’s income are prior orders for spousal and child support. Caveat: that $148,000.00 cap effectively “disappears” for high income earners since the court can take into account certain “variance” factors to award child support beyond that $148,000.00 cap.

The variance factors give the courts latitude to award more or less in child support from the non-residential parent to the residential parent.

The basic child support described above allocates money for the child’s or children’s basic needs: the roof over their head, the food on the table and their clothing. Since the child will also need medical care and the residential parent may need child care (“add-ons”) , the law provides that for these “add-ons” the parties are to pay these expenses proportionately to their incomes.

Can you save money by having the children fifty percent of the time? Probably not as the court will look to the higher earning parent to pay support to the lower earner.

Consult an attorney.