FREQUENTLY ASKED NEW YORK DIVORCE QUESTIONS

New York divorce or child custody proceedings can be a very emotional and painful experience. A divorce action may involve the division of simple assets such as the sale of the marital residence or it may be a complex matter involving the evaluation and sale of a business or division of pension and retirement benefits such as stock options. With the right attorney and careful planning, you may avoid a lengthy and highly expensive litigation. Bryan J. Hutchinson is an experienced and knowledgeable attorney who will advocate and guide you through the divorce process to obtain a fair and equitable resolution while reducing unnecessary stress and the cost of litigation. Depending on the complexity of your New York divorce action we may hire on a real estate appraiser, a forensic accountant or an economist to provide expert advice.

GROUNDS FOR NEW YORK DIVORCE

What are the grounds for a New York divorce?

There are seven grounds for a New York divorce. The grounds for divorce in New York are:

  1. Cruel and Inhuman Treatment — New York Domestic Relations Law section 170(1);
  2. Abandonment — New York Domestic Relations Law section 170(2);
  3. Imprisonment — New York Domestic Relations Law section 170(3);
  4. Adultery — New York Domestic Relations Law section 170(4);
  5. Living Apart Pursuant to Separation Decree — New York Domestic Relations Law section 170(5);
  6. Living Apart Pursuant to Separation Agreement — New York Domestic Relations Law section 170(6);
  7. Irretrievable Breakdown of the Relationship (DRL Sec. 170(7)): The relationship between the Plaintiff and Defendant has broken down irretrievably for a period of at least six months.
  8. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is an irretrievable breakdown in a New York divorce?

New York Domestic Relations law section 170(7) is the New York version of a no-fault divorce. Irretrievable breakdown or irreconcilable differences means that you and your spouse are not getting along and the marriage has broken down. All that is required is a sworn statement by one spouse that the relationship has been broken down for at least six months.

However, in order to be granted a judgment of divorce New York Domestic Relations Law section  170 (7)’s provides that “[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is considered abandonment in a marriage in New York?

New York Domestic Relations Law section 170(2) provides that the abandonment of the plaintiff by the defendant for a period of one or more years abandonment may occur in any one of three ways:

  1. the defendant spouse left the marital home; or
  2. the defendant spouse locked the plaintiff out of the marital residence; or
  3. constructive abandonment.

To establish a cause of action for a divorce on the ground of constructive abandonment within the meaning of Domestic Relations Law section 170 (2), the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year.  The refusal must be unjustified, willful and continued despite repeated requests for continued conjugal relations.  See Schine v Schine, 31 NY2d 113 (1972); Del Galdo v De Galdo, 51 AD2d 741, 379(2d Dept 1976).  The defendant spouse must not have suffered from an impairment or disability that prevented the defendant from engaging in sexual relations.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to a cause of action for abandonment in a New York divorce?

Constructive abandonment: If the refusal to engage in sexual relation is justified in light of inappropriate conduct by the allegedly abandoned spouse, that spouse has no cause of action for a divorce on the ground of constructive abandonment.

In cases involving a lock-out or leaving of the marital residence the defendant has a defense if the absence or lock-out was justified or that there is a lack of continuous abandonment.  See Schine v Schine, 31 NY2d 113; Del Galdo v De Galdo, 51 AD2d 741.  Generally, an un-rescinded and valid separation agreement or a valid separation decree is a defense to cause of action on abandonment. See Butt v Butt, 50 AD2d 584 (2d Dept 1975).

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are the requirements for proving adultery in a New York divorce case?

New York Domestic Relations Law section 170(4) define adultery as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff during the marriage.

Under NY Penal Law section 255.17, a person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is classified as a class B misdemeanor.

In order to prove adultery, an affidavit for the plaintiff is not sufficient, because a spouse is not competent to testify as to an adultery committed by the other spouse. See CPLR § 4502(a). However, a spouse is allowed give testimony to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to a cause of action for adultery in a New York divorce?

Domestic Relations Law section 171 provides that notwithstanding the fact that a plaintiff may establish adultery, the court will not grant a divorce if any one of the following facts is proved in the divorce action:

  1. Where the offense was committed by the procurement or with the connivance of the plaintiff.
  2. Where the offense charged has been forgiven by the plaintiff. The forgiveness may be proven, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the facts.
  3. Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by the plaintiff of the offense charged.
  4. Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.
  5. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are the requirements for proving cruel and inhuman treatment in a New York divorce case?

New York Domestic Relations Law section 170(1), provides that 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.
The court generally considers the parties age, the length of the marriage, the scope, degree and effect of the conduct between the parties.
Cruelty may take the form of either verbal or physical abuse. Conduct that has been considered cruel, includes but not limited to:

  • locking the spouse out of the marital residence;
  • destroying personal belongings;
  • making embarrassing phone calls to the other spouse’s employer;
  • denigrating spouse in public;
  • flaunting extramarital affair;
  • making false accusation of extramarital affairs;
  • threats of violence; and
  • drug addiction and habitual intoxication that make it unsafe for the plaintiff to live with the defendant.

A party seeking divorce on this ground must show serious misconduct, and not mere incompatibility — a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper. Further, when the marriage is one of long duration, a high degree of proof of cruel and inhuman treatment is required.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to a New York divorce based on cruel and inhuman treatment?

Defenses to a New York divorce action upon the grounds of cruel and inhuman treatment include but are not limited to: (1) the five-year statute of limitation – the events occurred five years prior to the date of commencement of the action.  See Domestic Relations Law § 210.

Under the present New York divorce statute there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment and the court will probably dismiss any such affirmative defense.  See Mante v Mante, 34 AD2d 134(2d Dept 1970).  However, defendant may show that misconduct by plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife.  To that extent the information is material and necessary to the defense of the action.  See Walden v Walden, 41 AD2d 664 (2d Dept 1973); CPLR § 3126.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are the requirements for obtaining a New York divorce on the grounds of imprisonment of my spouse?

New York Domestic Relation Law section 170(3) provides that the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and defendant. The defendant must be incarcerated at the time the action is commenced.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to a New York divorce based on the imprisonment of the defendant?

New York Domestic Relation Law section 210, no action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are the requirements for obtaining a New York divorce based on a separation agreement?

The husband and wife must have lived separate and apart pursuant to a written agreement of separation.

The agreement of separation must be subscribed by the parties and acknowledged or proved in the form required to entitle a deed to be recorded. The parties must live separate and apart for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides.

In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to obtaining a New York divorce based on a separation agreement?

Cohabitation after the execution of a written separation agreement is a defense to obtaining a divorce based on the separation agreement.

However, cohabitation of in and of itself is not sufficient to destroy a separation agreement unless there is proof that such cohabitation occurred with intent to reconcile and abandon the separation agreement.  See Brody v Brody, 190 AD 806 (1st Dept 1920); Markowitz v Markowitz, 381 NYS2d 676 (1st Dept 1976).

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

How can I obtain a New York judgment of divorce based on a separation decree?

New York Domestic Relations Law section 170(5) provides that if 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.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is a defense to a divorce based on a separation decree?

If the parties have failed to substantially perform all the terms and conditions of such decree or judgment the defendant may have a valid defense.

It is not a defense to a judgment of separation that the parties have reconciled and cohabited.  See Coppola v Copolla, 17 AD2d 647, 648, (2d Dept 1962), appeal dismissed 12 NY2d 712(1962); Quirk v Quirk, 175 Misc. 703(Sup. Ct. Erie County 1941).  However, under Domestic Relations Law Section 203, a joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separation, forever, or for a limited period, may be revoked by the court.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are some common defenses to a New York divorce action?

  • Defense to a divorce based on abandonment

Constructive abandonment: If the refusal to engage in sexual relation is justified in light of inappropriate conduct by the allegedly abandoned spouse, that spouse has no cause of action for a divorce on the ground of constructive abandonment.

In cases involving a lock-out or leaving of the marital residence the defendant has a defense if the absence or lock-out was justified or that there is a lack of continuous abandonment. See Schine v Schine, 31 NY2d 113; Del Galdo v De Galdo, 51 AD2d 741.  Generally, an un-rescinded and valid separation agreement or a valid separation decree is a defense to a cause of action on abandonment.  See Butt v Butt, 50 AD2d 584 (2d Dept 1975).

  • Defenses to a divorce based cruel and inhuman treatment

Defenses to a divorce action upon the grounds of cruel and inhuman treatment include but are not limited to: (1) the five-year statute of limitation – the events occurred five years prior to the date of commencement of the action.  See Domestic Relations Law Section 210.

Under the present divorce statute there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment and the court will probably dismiss any such affirmative defense.  See Mante v Mante, 34 AD2d 134 (2d Dept 1970).  However, defendant may show that misconduct by plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving defendant wife rather than the alleged cruel and inhuman treatment of the wife.  To that extent the information is material and necessary to the defense of the action.  See Walden v Walden, 41 AD2d 664(2d Dept 1973); CPLR § 3126.

  • Defense to a divorce based on the imprisonment of the defendant

Under Domestic Relation Law section 210, no action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of the action for divorce.

  • Defenses to a divorce based on a separation agreement

Cohabitation after the execution of a written separation agreement is a defense to obtaining a divorce based on the separation agreement in New York.

However, cohabitation in and of itself is not sufficient to destroy a separation agreement unless there is proof that such cohabitation occurred with intent to reconcile and abandon the separation agreement.  See Brody v Brody, 190 AD 806 (1st Dept 1920); Markowitz v Markowitz, 381 NYS2d 676 (1st Dept 1976).

  • Defense to a divorce based on a separation decree

If the parties have failed to substantially perform all the terms and conditions of such decree or judgment the defendant may have a valid defense.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

How do I serve New York divorce papers if I cannot find my spouse?

New York divorce law requires personal service upon a spouse. You must conduct a due diligence search and prove to the satisfaction of the court that you made a good faith effort to locate your spouse. After a due diligence search is conduct an application can be made to the court to serve your spouse by publication.

New York Domestic Relations Law section 232(a) provides for service by publication pursuant to CPLR § 315 in the event that service cannot be made by another prescribed method with due diligence. However, service by publication should be utilized only as a last resort where all other methods of service are unavailable, including possible methods of expedient service under CPLR § 308(5).

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

NEW YORK DIVORCE RESIDENCY REQUIREMENT

Do I have to reside in New York to obtain a judgment of divorce in New York?

Under New York law an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained when one or both of the parties is a resident of the State of New York for a particular period of time as specified by New York Domestic Relations Law section 230.

An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when one of the following event is satisfied (note you only need to satisfy one):

  1. The parties were married in the state and either party is a resident of the state when the action is commenced and has been a resident for a continuous period of one year immediately preceding; or
  2. The parties have resided in this state as husband and wife and either party is a resident of the state when the action is commenced and has been a resident for a continuous period of one year immediately preceding; or
  3. The cause 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 cause occurred in the state and both parties are residents the state at the time of the commencement of the action; or
  5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
  6. Bronx divorce lawyer Bryan J. Hutchinson to guide you thorough the complexities of the divorce process. Call Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation

ATTORNEY FEES

How much does it cost to get divorce in New York if both parties agree?

The cost for an uncontested divorce in New York is $335 in court cost and filing fees. This includes the $210 cost of an index number and $125 for the Note of Issue and Request for Judicial Intervention. The index number is used by the court to keep track of your case and must be placed on all documents filed with the court.   This does not include attorney fees, process server fees, mailing and photocopies.

How can I get my spouse to pay my New York divorce attorney fees?

New York Domestic Relations Law section 237(a) provides:

“(a) In any action or proceeding brought . . . for a divorce . . . the court may direct either spouse . . . to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding, as in the court’s discretion, justice requires, having regard to the circumstance of the case and of the respective parties.”

In O’Shea v O’Shea, 93 NY2d 187(1999), the New York State Court of Appeals stated that Domestic Relations Law section 237 “is designed to redress the economic disparity between the monied spouse and the non-monied spouse.”  The court further stated that “[t]he courts are to see that the scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet.”

Therefore, in order to prevent the less moneyed spouse from being at a disadvantage in the divorce action the court may award attorney fees upon a motion or order to show cause based upon the facts and circumstance of the particular case.

Are my attorney fees incurred in my New York divorce action tax deductible?

Generally, taxpayers are not allowed a deduction for attorney fees and cost related to the dissolution of the marriage.  However, under IRC § 213(3) attorney fees incurred by a spouse attributable to tax advice is deductible.

PATERNITY

What is the process of establishing paternity in New York?

Paternity in New York may be established in one of two ways.  First, both parents can sign an Acknowledgement of Paternity form. Second, a biological parent can file a petition to establish paternity and the court will issue an Order of Filiation.  It is important to establish paternity, so the biological father becomes the legal father.  This creates rights for both the father and the child such as custody and visitation.  In addition, the child will be treated the same as a child born to married parents and entitled to benefits such as:

  • Health Insurance coverage;
  • Child support.
  • Social Security; and
  • Veterans Benefits.
  • Inheritance rights.

NEW YORK CHILD CUSTODY AND VISITATION

What factors do New York courts look at in making a determination of child custody or visitation?

The court essentially looks at what is in the best interest of the child. Based on the totality of the circumstance some of the factors that courts look at include but not limited to:

  • ability of each parent to provide for the emotional and intellectual development of the child, (Sandman v Sandman, 64 AD2d 698);
  • the desire of the child, if age appropriate, child’s desire is not determinative (Ebert v Ebert, 56 NY2d 167 (1976); Obey v Degling,37 NY2d 768 (1975);
  • stability and companionship of siblings (Friedwitzer v Friedwitzer, 55 NY2d 89 (1982);
  • deterring self-help through abduction (Friedwitzer v Friedwitzer, 55 NY2d 89 (1982);
  • the atmosphere of the home (Saunders v Saunders, 60 AD2d 701 (3d Dept 1977);
  • the morality of the parents (Saunders v Saunders, 60 AD2d 701 (3d Dept 1977); and

the prospective educational probabilities (Saunders v Saunders, 60 AD2d 701 (3d Dept 1977.

Bronx Divorce lawyer Bryan J. Hutchinson will fight for right to custody and visitation with your children. Call 718-671-0900 for a confidential consultation.

What is the function of a forensic expert in a New York child custody and or visitation proceeding?

A forensic expert in a New York child custody or visitation proceedings is either psychiatrist, psychologist, or other qualified professional medical personnel that is utilized by courts to conduct an examination and render a report to the court.  Whether or not to utilize a forensic expert is within the sound discretion of the court.  See Kesseler v Kesseler, 10 NY2d 445 (1962).  In addition, the parties may hire their own independent forensic expert to provide testimony regarding an issue in the case.

New York Family Court Act section 251 grants the court authority to order a forensic evaluation of the parents or child in custody, visitation or abuse and neglect proceedings.

The court may order a parent or infant to submit to an examination by a psychiatrist or psychologist and may consider the report before making a judgment in a custody proceeding.

Similarly, in a protective proceeding where there is allegation of abuse or neglect the court may order a parent or infant to submit to an examination by a psychiatrist or psychologist and may consider the report before making a judgment.

Bronx Divorce lawyer Bryan J. Hutchinson will fight for right to custody and visitation with your children. Call 718-671-0900 for a confidential consultation.

PARENTAL RELOCATION AND CHILD CUSTODY AND VISITATION

What if I want to relocate outside of New York with our child(ren)?

Cases in which a New York custodial parent’s desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are complex circumstances that are determined by New York Family Court judges or hearing examiners on a case by case basis.  In deciding whether to modify a custody arrangement the court must examine what arrangement would be in the child’s best interest.  See Freibergite v Friederwitzer, 55 NY2d 89, 93, (1982); Eschbach v Eschbach, 56 NY2d 167(1982).

In Tropea v Tropea, 87 NY2d 727(1996), the New York State Court of Appeals analyzed some of the factors that Courts in New York should consider in deciding a custodial parent’s request for relocation.  The court emphasized that, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern.

These factors include, but are certainly not limited to:
a) Each parent’s reasons for seeking or opposing the move;
b) The quality of the relationships between the child and the custodial and noncustodial parents;
c) The impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;
d) The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move;
e) The effect that the move may have on any extended family relationships; and
f) The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Where the custodial parent’s reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent’s mobility.

Alternatively, where a child’s ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as a realistic alternative to forcing the custodial parent to remain may have a significant impact on the outcome.

In sum, based on the totality of the circumstances and all of the proof, the court will determine whether the custodial parent has established by a preponderance of the evidence that a proposed relocation would serve the child’s best interest.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to custody and visitation. We represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

GRANDPARENTS VISITATION

Do grandparents have a right to visitation in New York?

New York State Domestic Relations Law section 72 allow grandparents to obtain visitation of their grandchildren provided that it is in the best interest of the child.

Domestic Relations Law section 72(1) provides that:

“[w]here either or both of the parents of minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to [the supreme or the family court] . . . and the court by order, after due notice to the parent, or any other person, or party having the care, custody and control of such child, to be given in such manner as the court prescribe, may make such direction as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

In the Matter of ES v PD, 8 NY3d 150 (2007), the New York State Court of Appeal held that Domestic Relations Law section 72 allowing grandparent visitation was constitutional.

In ES v ED, the maternal grandmother brought an action seeking visitation with her grandson. The father of the child objected to the visitation in light of the United States Supreme Court decision in Troxel v Granville, 530 US 57 (2000).  In Troxel the paternal grandparent sought visitation with their deceased son’s daughter.  A Washington state statute provided that “anyone person” may petition the court “at anytime” for visitation as long as it serves the child’s best interest.  The Supreme determined that the Washington statute was constitutionally defective because it allowed “anyone” at “anytime” to petition the state court for visitation as long as it best serves the child.

The facts of Matter of ES v PD, 8 NY3d 150 is briefly summarized as follows: the mother of the child was sick with cancer and the grandmother moved into the marital residence to care for the mother and the child.  After the mother dies the grandmother continue to care for the child.  A dispute later developed between the grandmother and the father because the father thought that the grandmother was sabotaging his authority.

The court noted that section 72 has a two-step approach to grandparent’s visitation. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”.  See ES v ED, citing Matter of Emanuel S., 78 NY2d 178, 181(1991).

New York Domestic Relations Law section 72 does not give the grandparent an absolute or automatic right of visitation.  It merely grants the grandparents standing to seek visitation.  It provided mechanism for the grand parent to seek visitation.  The court found that the grandmother in ES v Ed had a long-standing relationship with the child.  And visitation with the grandmother would be in the child’ best interest.

NEW YORK CHILD SUPPORT

What age must child support be paid until in New York?

A New York child support obligation may be terminated upon the child reaching age 21.

We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

How can I get an increase on a New York child support order?

New York courts may modify a child support order or agreement that modify the parties’ obligation where it is determined either that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstance has occurred resulting in a concomitant increase in the child’s expenses and needs.  See Boden v Boden, 42 NY2d 210 (1977).

Where the demand for an increase in child support is based on the child’s right to receive adequate support the party demanding child support does not have to prove unanticipated and unreasonable change in circumstance to justify an increase.  See Michaels v Michaels, 56 NY2d 924 (1982) citing Brescia v Frit, 56 NY2d 132 (1982).

If your child support obligation was established on or after October 12, 2010, you can request a modification if:

  • Three years have passed since the order was entered, last modified, or adjusted; or
  • There has been a change in either parent’s gross income by 15% or more since the order was entered, last modified, or adjusted. Any decrease in income must be involuntary and the parent claiming decreased income must have tried to find work that would be appropriate to his or her education, ability and experience.
  • We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call Bronx child support lawyer Bryan J. Hutchinson (718) 671-0900 for a confidential consultation.

How do I reduce or modify my New York child support obligation?

If your income changes (i.e., no longer doing overtime, lose your job and getting unemployment, receiving disability, etc.) and you can no longer afford to pay the child support order, you should file a petition for a downward modification.

If your child support obligation was established on or after October 12, 2010, you can request a modification if:

  • Three years have passed since the order was entered, last modified, or adjusted; or
  • There has been a change in either parent’s gross income by 15% or more since the order was entered, last modified, or adjusted. Any decrease in income must be involuntary and the parent claiming decreased income must have tried to find work that would be appropriate to his or her education, ability and experience.
  • We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

How do I terminate my New York child support obligation?

A New York child support obligation may be terminated upon the child reaching age 21.  A child support obligation may also be terminated before the child reaches the age of 21 if:

  • The child becomes emancipated by getting married, or joining the military or lives on his own and is self-supporting;
  • You become the custodial parent; or
  • You cohabitate in the same household with the child and the custodial parent.
  • We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

Can I stop paying New York child support when the child turns 18 years old?

You can stop paying New York child support at age 18 if:

  • The child becomes emancipated by getting married, or joining the military or lives on his own and is self-supporting;
  • You become the custodial parent; or
  • You cohabitate in the same household with the child and the custodial parent.
  • We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

How much child support must the non-custodial parent pay to the custodial parent in New York?

New York child support is defined as a sum paid either by court order or by a valid agreement between the parents for care, maintenance and education of any unemancipated child under the age of twenty-one years.  See Domestic Relations Law section 240[1-b][b][2].  Child support is generally set pursuant a mathematical formula to the Child Support Standards Act.  The statute defines “basic” child support as the outcome of a mathematical formula set forth in guidelines, subject to increase on the basis of various factors, including health care, child care and educational, the latter commonly referred to as “add-on” expenses.  See Domestic Relations Law section 240[1-b][b][1].

We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

What is the child support percentage in New York?

New York child support lawyer Bryan J. Hutchinson can help you calculate the correct amount for child support based on the evaluation of your case.

Basic Child Support percentage are as follows:

  1. 17% of the combined parental income for one child;
  2. 25% of the combined parental income for two children;
  3. 29% of the combined parental income for three children;
  4. 31% of the combined parental income for four children; and
  5. no less than 35% of the combined parental income for five or more children.
  6. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

What happens to my New York spousal or child support obligation in the event of the untimely death of the payor?

In New York the payor spouse or parent is generally required to maintain life insurance to cover his or her continued spousal support or child support obligation in the event of death commensurate with the amount and length of the support obligation.

We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

What if the non-custodial parent does not live in New York?

If the non-custodial parent lives in another state, you can file a petition with the Family Court, under the Uniform Interstate Family Support Act (UIFSA).

We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

Why am I required to obtain life insurance as part of my child support obligation?

The payor spouse is generally required to maintain life insurance to cover his or her continued spousal support or child support obligation in the event of death commensurate with the amount and length of the support obligation.

We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties in child support proceedings. Call Bronx divorce lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

DOMESTIC RELATIONS ORDER

What is a Domestic Relations Order?

A domestic relations order is a judgment, decree or order issued by a court pursuant to New York State Domestic Relations Law that relates to the provision of child support, alimony payments or marital property rights for the benefit of a spouse, former spouse, child or other dependent of a participant.

What information must a Qualified Domestic Relations Order contain in order to qualify under ERISA?

A New York Qualified Domestic Relations Order must contain the following information:

  • the name and last known mailing address of the plan participant and each alternative payee;
  •  the name of each plan to which the order applies;
  • the dollar amount or percentage (or the method used to determine the dollar amount or percentage) of the benefit to be paid to the alternative payee; and
  • the number of payments or time period in which the order applies.

What information must not be included in a Qualified Domestic Relations Order?

A New York Qualified Domestic Relations Order must not contain any of the following information:

  • The order must not require the plan to provide to the alternative payee or participant with any type or form of benefit or option otherwise not provided under the plan.
  • The order must to require the plan to provide for increased benefits.
  • The order must not require the plan to pay benefits to an alternate payee that a previously issued QDRO required to be paid to another payee.
  • The order must not require the plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity to an alternate payee and his or her subsequent spouse.

EQUITABLE DISTRIBUTION OF PROPERTY

What is marital property under New York Domestic Relations Law?

New York Domestic Relations Law section 236B(1)(c) defines marital property as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement pursuant to subdivision three of this part.  Marital property shall not include separate property.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to equitable distribution of marital property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What is separate property under New York Domestic Relations Law?

New York Domestic Relations Law section 236B(1)(d) defines separate property as:

  1. property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
  2. compensation for personal injuries;
  3. property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; or
  4. property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
  5. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to equitable distribution of marital property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

How is equitable distribution of marital property determined in New York?

New York Domestic Relation Law section 236B(5)(d) provides that in determining an equitable disposition of property under paragraph c, the court shall consider:

  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; or
  13. any other factor which the court shall expressly find to be just and proper.
  14. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to equitable distribution of marital property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

SPOUSAL MAINTENANCE

What are the requirements for obtaining spousal maintenance in New York?

New York Equitable Distribution Law provide for maintenance and temporary maintenance of a spouse. See New York Domestic Relations Law section 236 Part B(2).

In any action or proceeding brought (1) to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court’s discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self-supporting, the circumstances of the case and of the respective parties.

The court may require the payment of a sum or sums of money either directly to either spouse or to third persons on behalf of the spouse.

Payment is generally effective as of the date of the application for maintenance. The court may direct that any retroactive amount of alimony due shall be paid in one sum or periodic sums.  The court may order maintenance payment despite the fact that the parties continue to reside in the same house and despite misconduct of the spouse seeking maintenance, unless such misconduct would itself constitute grounds for separation or divorce.

Factors That The Court Must Consider in Granting Maintenance

In determining the amount and duration of maintenance the New York court must consider the following factors:

  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 to become self-supporting;
  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.
  12. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

When am I entitled to spousal maintenance in New York?

The payment of spousal maintenance is generally effective as of the date of the application for maintenance. The court may direct that any retroactive amount of maintenance due shall be paid in one sum or periodic sums.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

Can I obtain spousal maintenance even though I live in the same house as my spouse?

New York courts can order spousal maintenance payment even though the parties continue to reside in the same house and despite misconduct of the spouse seeking maintenance, unless such misconduct would itself constitute grounds for separation or divorce.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What factors must the court consider in deciding the amount and duration of New York spousal maintenance?

In determining the amount and duration of maintenance Domestic Relation Law section 236B(6)(a) provides that the New York court must consider the following factors:

  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 and training necessary to become self-supporting;
  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.
  12. Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What are the tax consequences of receiving or paying New York spousal maintenance?

New York spousal maintenance is generally taxable to the payee. It’s advisable to consult with both a Certified Public Accountant and your divorce attorney on the tax implication of your maintenance payment and equitable distribution award.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

What will happen to my health insurance upon my New York divorce?

Generally in New York a dependent spouse who is covered by the health insurance of a former spouse is no longer entitled to coverage by the former spouse’s health insurance upon entry of the judgment of divorce.

However, the dependent spouse may be entitled to purchase health insurance through a COBRA option, if available, if not the dependent spouse may have to secure his or her own insurance.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to spousal maintenance. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

ATTORNEY FOR THE CHILD FORMERLY KNOWN AS A LAW GUARDIAN

What is an attorney for the child?

An attorney for the child is an attorney appointed by the court to look out for the best interest of the child. Family Court Act section 249 authorizes the Family Court to appoint a law guardian. The Supreme Court is also authorized to appoint a law guardian pursuant to 22 NYCRR section 202.16(f).

Bronx divorce lawyer Bryan J. Hutchinson will fight for your custody and visitation rights. We represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.

Who pays the attorney for the child in New York divorce or child custody proceeding?

A New York divorce or Family Court judge are empowered to issue an order depending on the respective parties’ income that the cost of the attorney for the child may be paid for by the 18B assigned counsel panel or by the parties.

Bronx divorce lawyer Bryan J. Hutchinson will fight for your custody and visitation rights. We represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.