Divorce & Family Law – FAQs

DIVORCE

Q: Assuming there is no pre- or postnuptial agreement, what are the primary issues considered in a divorce proceeding?
A: Grounds for divorce – most divorces in New York are “no fault.” While New York continues to have “fault” grounds, using fault grounds is disfavored since the advent of “no fault.”

In New York, “no fault” grounds are either:

• An irretrievable breakdown of the marriage for a period of six months or more,
  or

• having lived separate and apart for a year pursuant to a Separation Agreement.While New York is a no fault state, there are circumstances where there is egregious misconduct which may impact the distribution of assets.

  The primary issues to be determined in the event of a divorce are:

• Custody and child support of any children of the marriage;
• Maintenance (formerly known as alimony);
• Equitable distribution of the marital assets;
• A determination as to separate assets;
• Counsel fees (The “monied spouse” is presumptively responsible for the counsel and expert fees of the “less monied” spouse to ensure an even playing field.);
• Occupancy of the marital residence; and
• Distribution of personalty, including but not limited to, cars, boats, jewelry, and artwork.
  
  

Q: How is custody determined?
A: Custody is an emotional and complex issue which is typically negotiated by the lawyers or determined by the Court if the parties cannot agree. Often, the Court will appoint an Attorney for the Child who, generally speaking, advocates for the wishes of the child. Sometimes a forensic evaluation is also conducted by a psychologist or psychiatrist who meets with the parents and the children and others as necessary and makes custodial recommendations to the Court.
Courts may order that a custodial parent and the child or children of a marriage may continue to reside in a marital residence for some period of time. While the Courts rely upon the best interest of the child in making a custody determination, many factors – too numerous to describe here – are considered in determining which parent should receive custody.

Q: What is the Difference Between Legal and Physical Custody?
A: There are two distinct types of custody – Primary, also known as residential custody, and legal custody. Primary residential custody refers to which home the child or children reside the majority of the time; legal custody refers to decision making. A parent might receive residential custody, with joint legal custody or he or she could receive sole residential and sole legal custody. There are many other permutations as well. In true joint legal custody arrangement, the parents must agree upon or make major decisions jointly. Sometimes there could be joint legal custody with one parent having final say if the parties cannot agree; or joint legal custody with a Parent Coordinator or other professional being able to cast the tie breaking vote.
There is also sole legal custody which means that one parent can make major decisions (such as education, medical, camp, religion, etc.) on their own. More and more, courts have veered toward some kind of joint residential and legal custody, so that both parents have shared time and shared decision making. Occasionally, courts will award “spheres” of custody, where one parent has decision making with regard to education, while the other has medical decision making. Or, one parent might act to select camp while the other has final say over extra-curricular activities.
Once custody is determined – either by a negotiated agreement or by a judge, a parenting plan is put in place — meaning that the non-custodial parent will have fixed periods of parenting time (or visitation) with the child or children. Parties sometimes agree, or, if not, Courts will issue an order.

Q: How is child support determined?
A: The parent with residential custody is entitled to receive child support from the non-custodial parent, based upon a statutory formula. If the parents have the child or children for equal periods of time, generally speaking, the parent with the larger income pays child support to the parent with the lower income. The law provides for “basic” child support, as well as add on expenses which include: private school tuition, college, work necessitated childcare and medical expenses such as health insurance and unreimbursed medical expenses. Work necessitated childcare can include camp or after school activities, provided they are in lieu of work necessitated childcare such as when the custodial parent is working, seeking employment, or obtaining training. You will not be reimbursed for childcare if it is for social purposes, such as paying for a babysitter to go out for the evening. While there is a statute to calculate the proper amount a child support to be paid, Courts have discretion to deviate from the formula and to make child support determinations based on other factors such as lifestyle, and the needs of the children.

Q: How is maintenance determined?
A: Maintenance is paid to the “less monied” spouse, which, like child support, is based upon a formula which provides not only for the amount or support, but for the duration of support. Again, while there is a statutory formula, Courts have discretion to deviate from the formula and fashion awards predicated upon various factors, including lifestyle, the length of the marriage, whether one spouse gave up a career to raise the children, etc.

Q: What is equitable distribution?
A: New York is not a “title state” meaning that no matter which spouse’s name an asset is in, so long as it is acquired during the marriage, it is a marital asset subject to distribution (with exceptions for inheritances, gifts from third parties to one spouse, or personal injury settlement which are separate property – if kept separate.)
Distribution of marital assets would include assets such as real property, savings, checking, and brokerage accounts (such as stocks), business interests, retirement accounts, deferred compensation, art and furnishings, cars, businesses, or cryptocurrency. Equitable distribution does not necessarily mean equal distribution. It means “equitable”, or what is fair and equitable. The assets must be valued before they are divided. Different assets are distributed differently. For example, assets such as brokerage accounts, savings or checking accounts, and retirement accounts (the marital portion) are generally distributed fairly equally whereas businesses generally are not, depending on the specific facts in your case.
There are unique assets which one might not even consider, which are distributed as a part of equitable distribution. For example, travel-related assets such as hotel points and airline “miles” are also marital assets subject to equitable distribution. Again, New York is not a title state and so, it does not matter that assets are titled in one party’s name so long as they were accumulated during the marriage.

Q: Who pays the counsel and expert fees?
A: Litigation can be expensive. The “monied spouse” is presumptively responsible for the counsel (and expert) fees of the “less monied” spouse, in order to “level the playing field.” This is presumptive – not automatic, and it does not always mean the monied spouse pays 100% of the counsel fees, particularly it there is a large equitable distribution award. A court can find that the “less monied” spouse is responsible for a large portion of his or her own fees because he or she has received substantial assets as and for equitable distribution, among other reasons.Courts may also look to the behavior of each party and may deny counsel fees if the Court feels that a party has engaged in frivolous conduct.

Q: How are the marital assets valued?
A: Unless the parties agree to the value of the marital assets or an appraiser to determine the value, the Court will appoint an appraiser to value the various marital assets, including businesses, hedge fund accounts, real estate, NFTs and cryptocurrency, retirement accounts, and other assets, so that they may be equitably distributed. Valuations will often consider the tax implications of dividing or transferring assets and take into consideration other factors, such as whether a party owns a minority interest or if the asset is a privately held business. While there is no tax on the actual transfer of marital assets, there may be tax implications involved in the transfer of business interests or property and there are tax implications once an asset is ultimately sold, such as capital gains, taxes which may become due on the sale of the marital residence.

Q: What rights does a spouse have to inherit?
A: Provided you have a pre- or postnuptial agreement pursuant to which you waive your “right of election,” you can provide for whatever you wish in your will, in accordance, of course, with the terms and conditions of your pre- or post-nuptial agreement. Absent an agreement, until you are divorced, a spouse has a “right of election” against the other spouse’s estate, meaning he or she is entitled to claim a percentage of your estate even if your Will does not provide for this. Remember, if you do have a pre- or postnuptial agreement and have opted out of the statutory scheme allowing your spouse to “take” against your estate, you can always provide your spouse with more than is required under the agreement, but not less.

Q: How do I start the process?
A: While technically an action for divorce begins by the filing of a Summons for Divorce or a Summons with Complaint with the court, most cases typically do not start that way. We recommend that the first step is to consult with a matrimonial/family law attorney. In some instances, we begin by simply writing a letter to your spouse advising them that you have retained counsel. Sometimes mediation is the proper route, and other times we do recommend court intervention – each case has its own set of unique facts and we use our vast wealth of experience to guide our clients as to the best way to proceed. Some cases cry out for “private judges,” something that will provide for maximum discretion and confidentiality, and avoid the delays one might experience in court.