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Matrimonial Law

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The good news is that New York State has finally joined all of the other states in the union and now allows divorces without the need to allege and prove fault by the other party. In a divorce action, one only needs to establish that there has been an "... irretrievable breakdown in the marital relationship over the preceding period of six months." For both parties there is no longer the need to negotiate the fault aspects of the matrimonial breakdown, which often caused property, income or concessions in custody to be traded to be able to obtain a divorce. These other "ancillary" issues are now determined on their own merits, not as a bargaining chip to be relieved from an abusive marital situation. The fault grounds remain part of the law in New York, but are rarely used.


DIVORCE

A divorce action is begun in New York Supreme Court and the party who is without control of the finances of the relationship is entitled to obtain temporary maintenance (spousal support) and counsel fees at the outset of the legal action. In a divorce action, issues to be resolved include child custody and visitation, maintenance, property and debt allocation, family violence and many other matters. Please contact us to develop this area further if a divorce is what you are seeking.


FAMILY COURT

Family Court does not grant divorces and does not allocate property or debts, but deals with for children support and spousal support, custody of children and family violence. Family court also has power to grant adoptions, adjudicate juvenile misconduct and consider abuse and neglect of children as well as areas concerning education. You may find yourself facing matters in Family Court and the determinations there could have an effect upon a subsequent divorce action. People can find themselves in Family Court without the assistance of an attorney. If matters in family court get resolved unfavorably, they could have far reaching effects on one's life. So, if you are petitioning Family Court or responding to a petition concerning custody or support, give us a call and proceed with knowledge.


CUSTODY

What could be more important in one's life more than the health and well-being of one's child or children? The children didn't ask for their parents to separate or divorce, yet they are impacted the most by that decision. What placement they should have and which parent (or both) should be in the custodial position that was once shared by the parents, is based upon what is in the children's best interests. This will be determined by a Judge unless the parents are able to agree upon what is in the child's best interests. Joint custody, which was the marital form of custody, is favored so long as the parents can put their anger toward their spouse aside and works cooperatively on what is best for the kids. Contact us to discuss custody issues.


CHILD SUPPORT

The non-custodial parent will pay child support to the custodial parent, in most cases, based upon a formula based upon each parent's gross income less FICA This can be complicated by one or both parents being self-employed or deriving income from non-traditional sources. In addition to the basic child support there is added a proportionate share of daycare expenses, if necessary and uninsured medical expenses and cost of insurance coverage. Other needs, such as extra-curricular expenses, education expenses, costs incurred to exercise visitation (when one parent has relocated) can also be factors. What happens when custody is shared or when the custody of two or more children is split between the parents? Contact us to discuss child support issues.


MAINTENANCE

Maintenance, commonly thought of as spousal support or alimony, may be paid by the spouse with greater income to the spouse with lesser income. As mentioned above, due to a recent change in the law, temporary maintenance may be directed to be paid when a divorce action is commenced. The award is based upon a formula, or if the court deviates from the formula, the court must make specific findings in an Order, explaining why it is deviating. This award lasts only as long as the case is unresolved. There is no formula determining the amount or duration maintenance beyond that period. If you have a long term marriage, this is a significant issue that could have far reaching effects. The court can also order rehabilitative maintenance, to enable a spouse to get education or training to become self-supporting. Contact us to discuss matrimonial issues.


DISTRIBUTION OF PROPERTY

This is known as the Equitable Distribution portion of the divorce action and also to be considered is the allocation of debts. Marital property consists of property acquired during the marriage (with some exceptions). It consists of all types of property, tangible and intangible, wherever it is located. There are numerous factors in the law that must be considered concerning how the property (and debts) should be allocated. A thorough understanding of these issues is necessary.


FAMILY VIOLENCE

Real or perceived family violence can have far reaching effects on the Divorce action or in Family Court, resulting in the issuance of an Order of Protection. Very often one party can be removed from the family home when the other party petitions Family Court without the court hearing any proof other than the sworn testimony of the applicant. Even if at the trial of the issue the removed party can be successful, a period of months may have passed. When these issues are present, the impact it can have on the party cannot be overstated, since it effects access to children and restricts the conduct of the party. If you need to apply to Family Court for relief, or if you are summonsed into Family Court after being excluded from your home, contact us for advice.


NUPTUAL AND PRE-NUPTUAL AGREEMENTS

Individuals contemplating marriage and even marital partners can enter into agreements concerning their assets and liabilities and pre plan in case the marriage does not work out. This is commonly done when an individual is remarrying and may have children form the first marriage and/or property that was acquired prior to the forthcoming marriage. Where there is a great disparity of property held by each party to a forthcoming marriage, there are often agreements done even before a first marriage.

 

 

 


Copyright 2014 by
Richard H. Weiskopf
Of Counsel to  the DeLorenzo Law Firm
670 Franklin Street, Schenectady NY 12305
518-374-8450

 


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