Attorneys-at-Law
301 Old Tarrytown Road
White Plains, NY 10603
ph: 914-686-0558
fax: 914-686-2516
alt: 845-225-6600
astreisf
How to Prepare for Divorce in New York
(1) Consider whether the marriage is, indeed, irretrievably broken. First and foremost, consider long and deeply whether there must be a divorce at all. Divorce can be a financially, emotionally and physically draining experience. Proper investigation of marriage counseling and spiritual counseling in the proper situations should be explored before taking this huge step.
(2) Possible use of Alternative Dispute Resolution Procedures like mediation and collaborative law should be considered if the marriage cannot be saved. With the Court systems so overly taxed with the huge caseload they face, it is often a better approach to make use of procedures whereby a neutral party helps to identify issues between spouses that need to be resolved and build bridges to help them separate in the most acceptable manner to both parties as possible (Mediation). Also, increasingly popular is the use of Collaborative Law whereby the parties hire attorneys, but it is under an agreement that the attorneys will assist the spouses to reach their own agreement that the spouses themselves construct, to end the marriage and provide for property distribution, child custody, visitation, child support and maintenance of a former spouse and other critical issues.
(3) In the event that a resolution cannot be reached in these ways, a working knowledge of divorce procedure and rights is crucial:
There are Residency and Filing Requirements: In order to have a divorce in a New York Court (Supreme Court has the power or jurisdiction, as it's called) at least one party has to have been in this state for certain periods. Also, there arelimitations on which county has the right to hear the divorce, based on that or both parties' residency within a county.. The requirements are as follows:
As to residency: These will apply to a suit to to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation:
1. The parties had to be married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. When the parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. +When the right to oobtain a judgment for any of these types of relief in matrimonial cases occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The right for the lawsuit occurred in the state and both parties are residents here at the time of the commencement of the action, or
5. Either party has been a resident of the New York for a continuous period of at least two years immediately preceding the commencement of the action.
Grounds for Divorce in New York: The following are currently the existinng grounds for divorce in New York:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) Adultery.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The parties have lived apart pursuant to the terms of a separation agreement for a period of one (1) year or more.
(7) That the parties' relationship has had irreconcilable differences for a periof of six (6) months or more (so called "No Fault Divorce").
Primary Documents: The Summons and Verified Complaint for divorce, various applications for child support, maintenance, custody, visitation and models of the final Findings of Fact, Conclusions of Law and Judgment of Divorce can all be reviewed online via the site for the New York Unified Court System. The potential client should develop some kind of familiarity with these documents early on.
Property Distribution: Since New York is an "equitable distribution" state, the marital property shall be divided in an equitable (considering fairness) fashion. This does not mean equal.
The law provides for the following:
Disposition of property in certain matrimonial actions.
a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
The court shall consider the following factors when distributing property upon divorce:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Spousal Support: If the Court will require the payment of spousal support, either on a temporary or permanent basis, if any, the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)
Child Custody: .
In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)
Child Support: New York child support guidelines are based on the Uniform Child Support Standard Act tables. The periodic support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. When the combined parental income is greater than $80,000, the mathematical guidelines for arriving at a child support amount can change in the discretion of the Court hearing the case. Income is based upon documentation found in prior years' tax returns, W-2's and 1099s. Income earned "off the books" or in cash which is not reported by the payor employer can present special problems.
Order of support by parent. When the court makes an order of support pursuant to the support guidlines, the social security number of the parties is put on the Order so as to facilitate potential collection if there is a problem in the future. Child support Orders may be subject to modification in the future based upon a showing of a material change in financial circumstances of the parties and, if an increase in child support is requested, there must also be a showing of increased needs of the child(ren) to obtain such modification.
In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have.
THE POLICY STATEMENT OF OUR OFFICE IN DOMESTIC MATTERS:
In divorce and family law matters, it is the committed policy of this law firm to have a sensitivity to the compelling personal and emotional needs of the client. At all times, there is a consciousness of the trauma that often goes along with family dissolution. Here, perhaps more than in other areas of our practice, lies the understanding that the client(s) needs come first, that they must be treated with understanding and compassion and that their interests be zealously pursued.
Arnold R. Streisfeld, Esq., in addition to representing numerous divorce clients over a period of thirty-eight years, also served as a Law Guardian for the Ninth Judicial District for over eleven years. A Law Guardian (now called "attorney(s) for the children" is an attorney specially trained and certified on a yearly basis to represent the interests of children in divorce, custody, visitation, neglect, abuse, juvenile deliquency, person in need of supervision and adoption matters. This unique and intensive experience enables Mr. Streisfeld to afford clients an unusual degree of insight and useful tools in family law matters. His sensitivity and compassion for the emotions and rights of children adversely affected by divorce and other family disputes is unsurpassed!
Copyright 2016 Arnold R. Streisfeld, P.C.. All rights reserved.
301 Old Tarrytown Road
White Plains, NY 10603
ph: 914-686-0558
fax: 914-686-2516
alt: 845-225-6600
astreisf