What is Divorce Law?
Divorce law defines the process by which couples who wish to divorce can legally end their marriage. It also sets forth how property and other matters are divided between parties after a divorce has been finalized.
New York courts recognize both fault-based and no-fault grounds for divorce. Couples may qualify for a no-fault divorce if they have been separated for at least one year, or their relationship has irretrievably broken down for at least six months.
Grounds for Divorce
Couples divorcing must identify the grounds that caused their marriage to fail, either “fault” or “no fault.” Filing for divorce on a fault-based basis is more complicated than getting one without, since you could potentially lose access to alimony and/or property as part of the settlement.
Adultery is the most common reason for divorce. To prove adultery, a party must show that their spouse committed an act of infidelity. This may include public displays of affection between the guilty spouse and another individual or non-spouse.
It is essential to note that if you are seeking divorce on the grounds of adultery, do not attempt to convince the court that your actions were caused or encouraged by you. Instead, provide evidence proving your involvement in the affair.
One common fault-based ground for divorce is abandonment. This occurs when one spouse physically leaves their home or refuses to cohabitate with them; however, this ground can also be utilized for constructive abandonment.
In order to establish abandonment, you must prove it occurred over a certain period of time. This could prove challenging since your spouse’s behavior could have changed during this time.
However, if you can prove your spouse abandoned you for at least a year, this is enough grounds for an utter desertion divorce. To defend against this ground of claim, present evidence showing your spouse attempted to work on the relationship and was not resentful of your efforts to repair the marriage.
Property Division
Property division can be one of the most challenging and contentious aspects of divorce. A knowledgeable Massachusetts lawyer will guide you through these complex legal waters to ensure that your assets are divided fairly and equitably between you and your spouse.
When divorcing, two kinds of property must be divided: marital property and separate property. Marital property refers to everything you owned or acquired during the marriage, such as real estate, retirement plans, stocks, bank accounts and other investments.
Separate property refers to any assets owned before marriage or gifts received from someone other than your spouse. In New York state law, such property is considered exclusive to you.
Courts consider the length of a marriage, whether one party made more contribution to marital property, income and earning capacity of each spouse, as well as any services rendered during that time. For instance, if you worked for your spouse’s business during marriage and it was successful, that success may be used by the court to grant you more share in its profits.
Generally, infidelity or cheating won’t affect the distribution of property. However, if there has been dissipation of assets due to an affair, then the court may take that into account when making their determination.
The judge will take into account how much money each spouse makes and whether there are financial repercussions from infidelity or cheating. If there has been a significant hardship caused by infidelity or cheating, then the court may award you a larger share of marital property as compensation.
Child Custody
When couples file for divorce, the court will decide how their children will be divided between them. This process, known as custody, involves both physical (where the children live) and legal aspects.
Courts may grant one parent sole physical custody of a child, or it might grant joint physical custody to both parents. Either way, the child will spend significant amounts of time with each parent.
Judges may grant supervised visitation to noncustodial parents, which generally means the child stays with the custodial parent for part of each week or month. This can be beneficial when one parent lives far away or struggles with mental health issues.
In most states, courts use the “best interests of the child” standard when making custody decisions. This standard takes into account factors like a child’s age, physical and emotional wellbeing, parents’ lifestyles, their relationship with them, as well as any preferences the children may have if old enough to make rational choices about what is best for them.
As a general guideline, it may not always be possible to come up with a custody arrangement that works for everyone. For instance, if the parents have different work schedules or the children have differing needs, it’s likely that a judge won’t be able to reach an agreement on a solution that benefits everyone involved.
Couples may find it more advantageous to attempt private negotiations to resolve their differences instead of going to court for custody battles. When doing so, make sure the best interests of your child remain at the forefront.
Child Support
After divorce, the court can order one parent to pay another for child support. The amount varies by state but typically covers basic necessities like food and clothing as well as medical, dental and education costs.
The court determines child support amounts using a formula that takes into account both parents’ incomes and how many children they have. To do this, each parent’s gross earnings are added up and divided based on their percentage share of the combined income.
This formula is intended to make the process straightforward and equitable. However, if you feel that the amount is unreasonable, legal assistance may be available in order to adjust it.
As with spousal support, you may need to file for modification if your income or that of your former spouse has drastically changed. You could also ask for a modification if they fail to make payments or experience other significant shifts in finances.
A New York attorney with expertise in child support law can guide you through this complex issue. They’ll assist with preparation for the hearing, present evidence to the court and advise whether trial is necessary.
Child support obligations are enforced by the Department of Social Services’ Child Support Enforcement Unit (CSEU). This unit collects and distributes payments, pays court ordered health insurance benefits and other child support-related costs, as well as using various administrative remedies to recover unpaid child support.
Nonpayment of child support can be a serious issue, particularly for the non-custodial parent. In extreme cases, courts have the power to place the parent in jail, intercept a tax refund or seize property. They may also be reported to credit agencies and have their driver’s license suspended or revoked.
Spousal Support
After divorce, spouses often receive financial support. In some states, this support is known as alimony while in others it’s known as maintenance.
Spousal support is designed to ensure the dependent spouse can maintain their standard of living after divorce. A judge will take into account various factors when making this determination, such as each spouse’s income and earning capacity.
Some courts may take into account the length of a marriage, as well as each spouse’s health and age. These are important factors, since spouses who have been together for some time often have greater earning potential than those married for only one year.
Spousal support may be ordered by a court as part of either a settlement agreement or judgment, and it can be modified if there are significant changes in either party’s situation.
Spousal support orders in New York State are typically granted through Family Court; however, they can also be included as part of a divorce settlement in Supreme Court.
One common way a judge can determine the amount of spousal support is by taking into account each spouse’s “income.” This includes all sources of money such as pay checks, stock dividends and RRSP contributions.
Many courts utilize a mathematical formula to calculate spousal support, but judges have the discretion to take into account other factors as well. For instance, they might take into account whether an individual requires ongoing education or training in order to increase their earning capacity.
Some courts take into account a recipient’s ability to find employment after divorce. If one spouse has been unemployed for an extended period, a judge may grant spousal support in hopes that they will eventually secure work paying enough to cover their expenses.
