Obtaining A Divorce or Seperation
1. Irretrievable Breakdown: The relationship between you and your spouse has broken down irretrievably for at least six months, which means your relationship is broken beyond repair. The court cannot give you a divorce on these grounds until after property, debts, child custody, visitation, spousal support, and child support have been settled (where both parties are in agreement) or decided by the court.
2. Cruel and inhuman treatment: "Cruel and inhuman treatment" by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the most recent abusive treatment happened more than 5 years ago, you cannot divorce for this reason if your spouse objects.
3. Abandonment: Your spouse "abandons" you for at least a year. This means that your spouse has left you, or kicked you out, and does not intend to return.
4. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than 5 years ago, you cannot divorce for this reason. Additionally, the imprisonment must have started after you got married.
5. Adultery: Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than 5 years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.
6. Judgment of Separation: You and your spouse have not lived together because of a "Decree of Separation" or "Judgment of Separation", given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip the Judgment and go directly to divorce.
7. Separation Agreement: You and your spouse have not lived together because of a written "Agreement of Separation" for at least one year. Both you and your spouse must sign this agreement before a notary and the agreement must follow specific legal rules if you live in NY. If those rules are not followed, the agreement is invalid, so it is best to have a lawyer review it. You must obey all the conditions of the agreement.
What is a "conversion divorce"?
Number 7 listed above is sometimes called a conversion divorce. Conversion divorces allow divorces based upon a Separation Agreement that you already had in place for a full year. Basically, you change the Separation Agreement into a divorce. Even if you want a divorce on other grounds, a Separation Agreement can make a divorce easier and faster.
Child & Spousal Support
First, the court determines each parent's net income. Net income is gross income minus certain deductions, such as FICA, NYC income tax, Yonkers income tax, spousal support and child support paid for other child(ren). Second, the court adds the parents' net income together and multiplies that number by a percentage, depending on how many children they have:
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17% for one child
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25% for two children
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29% for three children
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31% for four children
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no less than 35% for five or more children
That amount is then divided based on the proportion of each parent's net income to the combined parental net income. In addition to the basic child support obligation, a spouse may also be required to pay for child care expenses, educational expenses and medical expenses.
SPOUSAL SUPPORT (Maintenance/Alimony)
Spousal support is court ordered money paid to support a spouse. Maintenance or “temporary maintenance” is support ordered to be paid for an ex-spouse, or while a divorce case is pending in court. Since October 26, 2015, New York has had a presumptive formula to decide how much support or “temporary maintenance” should be paid. On January 25, 2016, a new law took effect setting presumptive amounts and length of time for maintenance after a divorce. These guidelines are presumed to be the correct amounts and time periods, but the court still has discretion to order different amounts if the court explains why.
The guideline formula for maintenance is applicable to $192,000 of income for the payor - higher income spouse. Although this is an income “cap” for the guideline amount of maintenance, a Judge does have discretion to order maintenance above and beyond that amount after considering various enumerated factors. A Judge can choose not to apply the formula and instead decide an appropriate amount on a case by case basis, setting forth the reasons after consideration of fifteen factors. The factors are:
1. The age and health of the parties.
2. The present or future earning capacity of the parties, including a history of limited participation in the workforce:
3. The need of one party to incur education or training expenses.
4. The termination of a child support award before the termination of the maintenance award when the calculation fo maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded.
5. The wasteful dissipation of marital property by a party, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration.
6. The existence and duration of a pre-marital joint household or a pre-divorce separate households.
7. Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence.
8. The availability and cost of medical insurance to the parties.
9. The care of children, stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity.
10. The tax consequences to each party.
11. The standard of living of the parties established during the marriage.
12. The reduced or lost earning capacity of the spouse receiving maintenance as a result of having forgone or delayed education, training, employment or career opportunities during the marriage.
13. The division of marital property in the divorce and the income or imputed income on the assets so distributed;
14. The contributions and services of the spouse receiving maintenance as a spouse, parent, wage earner and homemaker to the career or career potential of the other party; and
15. Any other factor which the court shall expressly find to be just and proper.
Division of Marital Property
What is Equitable Distribution?
New York is an "Equitable Distribution" state. Essentially what this means is that while property is usually divided equally, the courts may take into account other considerations such as separate property claims, valuation of property, and contributions made by either spouse towards the attainment or growth of property. In sum,
New York courts are required to divide property fairly and equitably considering the following factors:
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each spouse's income and property when they married and when they filed for divorce
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the duration of the marriage
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each spouse's age and health
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the need of the custodial parent to live in the family home and use or own its effects (furniture and so on)
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the pension, health insurance, and inheritance rights either spouse will lose as a result of the divorce, valued as of the date of the divorce
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whether the court has awarded spousal maintenance (alimony)
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whether either spouse has an equitable claim to marital property to which that spouse does not have title, based on that spouse's contribution of labor, money, or efforts as a spouse, parent, wage earner, or homemaker, including contributions to the other spouse's earning potential (by, for example, working to put the other spouse through school)
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the liquid or non-liquid character of all marital property
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the probable future financial circumstances of each spouse
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if the marital property includes a component or interest in a business, corporation, or profession, the difficulty of valuing that interest and whether it would be desirable for that interest to be retained intact, free from claims or interference by the other spouse
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the tax consequences to each spouse
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whether either spouse has wastefully dissipated marital assets
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whether either spouse has transferred or encumbered marital property in contemplation of divorce without fair consideration
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any other factor the court expressly finds to be a just and proper consideration.
Divorce v. Separation
What is the Difference between Martial and Separate Property?
Only marital property is divided by the court. Each spouse gets to keep his or her own separate property. Marital property includes all property acquired by either or both parties during the marriage, regardless of the form in which title is held, subject to the exceptions below. Each spouse's income during marriage, the property purchased with that income, the property they purchased while married (such as a house or car), the retirement benefits each spouse earned during marriage are all considered marital property.
What is separate property?
Separate property is not divided when a couple divorces. Instead, each spouse gets to keep his or her own separate property, except to the extent that the other spouse has contributed to its increase in value. Separate property includes:
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property either spouse acquired before marriage
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property either spouse received individually as an inheritance or gift, except from the other spouse
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compensation for personal injuries to either spouse
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any property characterized as separate property in a valid prenuptial agreement or other written contract
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property acquired from the proceeds or appreciation in value of separate property, unless that appreciation is partly due to the efforts or contributions of the other spouse.
Is a business or professional practice subject to equitable distribution?
Yes. Businesses and professional practices can be considered "property" subject to equitable distribution. However, as noted above, interests in a business may be difficult to divide, or it may be undesirable to do so. In this situation, the court will typically award the actual business or practice to the spouse who is running it, awarding the other spouse property to make up the difference.
Equitable Distribution
In some cases, two married people own a business together and need the help of an expert to accurately value it. After their appraisal report and testimony about their findings, both parties can determine if they agree or would like another opinion.
Certain things are considered when dividing a business. These include when it was created or acquired and appreciation. During proceedings, the Court will examine the business' performance both in the past and including future events. After the valuation date, the Court is no longer allowed to anticipate the future performance on a business. In some circumstances, one party may request to have a business valued at the date of the trial not before. In both circumstances, parties should understand that on paper there are tactics used to look less lucrative than in reality. However, the Court is well versed in these tactics.
There are three methods used for determining the value of a business during a divorce. These include the asset approach which values the business on it's assets and liabilities, the income approach which vales a business based on its operating income subtracting liabilities, and the market approach which values a business on the market price if it were sold.
Having an experienced lawyer, will make sure that the other party doesn't withhold any income and that you get the most you can. Please give us a call today.
