New York Divorce FAQ

New York Divorce Questions

Submitted by the Law Offices of
Jean M. Mahserjian, Esq., PC
Clifton Park, New York

 

What issues have to be determined before I obtain a New York 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 New York divorce 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 I have to prove fault to obtain a New York divorce?

 Unlike most other states, New York divorce cannot be based upon irreconcilable differences. Rather, to obtain a New York divorce, 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 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 New York divorce 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 New York 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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How is New York 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, unreimbursed medical expenses, and daycare expenses, and discretionary add ons, including college expenses.

The calculation of New York 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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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 $275.00 per hour.

Under New York 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 $1500.00 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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