DIVORCE FAQ


What is the difference between marital and separate property?
Do I need legal ground in order to file for divorce in New York?
Are there residency requirements for divorce in New York?
How is child support determined in New York?
If I change jobs to a lower paying job, will I be able to have my child support payments lowered?
If I quit my job, will I be able to ask the Court to terminate my child support?
How is child support determined in New York?
What is maintenance?
How long is maintenance paid for?
How does a Court determine the amount of maintenance?
Can I tape-record my ex-spouse's conversation without his or her knowledge?
I have heard that even If you can prove the thongs your ex-spouse says by having tape-recorded him/her, the Judge never wants to listen to the tape. Is that true?
Can I tape my child's phone conversations with my ex-spouse?
Will Marital fault have an impact on my divorce?
What can I do if I am unable to pay a firm's divorce retainer?
Now that I commenced a divorce proceeding, can I obtain a court order to compel my spouse to leave our martial residence pending the action?

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What is the difference between marital and separate property?

Marital property refers to all assets and properties that were acquired or accumulated by either spouse during the marriage Marital property is subject to equitable distribution during the divorce proceeding. Common examples of marital property include real estate pensions, bank accounts, money, time shares, furniture, motor vehicles, jewelry, debt, stocks, etc.

Separate property refers to any assets, properties, or possessions that were acquired either before the marriage commenced, or after the divorce Common examples of separate property include inheritances, personal injury awards and gifts from a third party. In New York, separate property is not subject to equitable distribution during a divorce proceeding. However, if one spouse acquired an asset before the marriage, and that asset accumulated interest or value during the marriage, then the interest or value earned during the marriage may be subject to equitable distribution, depending on proof of contribution.

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Do I need legal ground in order to file for divorce in New York?

Yes. Since New York is not a No fault" state, couples wishing to divorce must have legal grounds. New York does not acknowledge and will not grant a divorce based on "irreconcilable differences." The following circumstances are considered acceptable grounds for divorce in New York:

· Adultery

· Abusive, cruel, or inhumane treatment or behavior

· Abandonment for a period of at least one year or longer

· One spouse has been incarcerated for three years or longer

· One or both spouses refuse to engage in sexual relations for a period of one year or longer

If a couple does not have legal grounds for divorce, they can file for a legal separation agreement, consent to the forms of the agreement and live apart for a period of at least one year, and then file for divorce after that time has passed.

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Are there residency requirements for divorce in New York?

Yes. Before a couple will be granted a divorce, they must successfully meet the state's residency requirements. The residency requirements for divorce in New York are as follows:

At least one spouse must be a New York resident for at least one year before filing for divorce

The couple was married in New York

- The couple lived as husband and wife in New York State for at least one year before filing for divorce

The grounds for divorce took place in New York State and both parties were residents at the time of the commencement of the action for divorce

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How is child support determined in New York?

In New York, the non-custodial parent is required to pay child support to the custodial parent. Child support is determined by multiplying the combined income of both parents (up to $80,000) by the appropriate percentage. This percentage is determined by how many children require child support. One child is 17%, two children is 25%, three children is 29%, four children is 31%, and five or more children is 35%. After these figures have been multiplied by the respective percentages, the result is allocated between the parents according to their share of the total Income. When the combined parental income exceeds 580,00D, the court has the discretion to require one or both parents to make additional contributions.

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If I change jobs to a lower paying job, will I be able to have my child support payments lowered?

Not if you chose to make the change.

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If I quit my job, will I be able to ask the Court to terminate my child support?

No, not if you voluntarily left your job.

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How is child support determined in New York?

In New York, the non-custodial parent is required to pay child support to the custodial parent. Child support is determined by multiplying the combined income of both parents (up to 580,000) by the appropriate percentage. This percentage is determined by how many children require child support. One child is 17%, two children is 25%, three children is 29%, four children is 31%, and five or more children is 35%. After these figures have been multiplied by the respective percentages, the result is allocated between the parents according to their share of the total income. When the combined parental income exceeds $80,000, the court has the discretion to require one or both parents to make additional contributions.

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What is maintenance?

Maintenance is what used to be referred to as alimony. Maintenance is an award by the Court of support to your spouse for a fixed period of time, or for an indefinite period of time which can be for as long as he/she lives, you live or until he/she remarries - whichever comes sooner.

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How long is maintenance paid for?

It depends on a number of factors. The Court takes several factors into consideration such as how long will It take for the supported spouse to become self~supporting. The Court will consider whether schooling is necessary, what the health of the recipient is, how old is he/she, and your financial ability to pay the support, etc.

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How does a Court determine the amount of maintenance?

The Court looks at the reasonable needs of the recipient (based upon the prior standand of living), the income and assets of the recipient balanced against the income and assets of the party paying the support.

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Can I tape-record my ex-spouse's conversation without his or her knowledge?

As long as you are a party to the conversation, whether on the phone or in person, you can tape anyone. This includes “saving” answering machine messages. If you are not a party to the conversation, the taping is illegal.

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I have heard that even If you can prove the thongs your ex-spouse says by having tape-recorded him/her, the Judge never wants to listen to the tape. Is that true?

Since so many litigants do tape the other spouse, Judges grow weary of listening to endless tapes. However, if you do tape record your ex-spouse, label the tape with date and time, and then transcribe the tape word for word, The judge is likely to read a transcript knowing the tape is available to confirm the contents. It can also be used to discredit your ex-spouse on cross-examination, and prove he or she is not believable.

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Can I tape my child's phone conversations with my ex-spouse?

No! You are not a party to these conversations and you would be eavesdropping, which is a crime.

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Will Marital fault have an impact on my divorce?

Marital fault is usually not considered to have a financial impact on your case, unless such marital conduct rises to the level of "egregious'' conduct. However, depending upon your degree of marital fault it may very well impact on your ability to obtain physical and or legal custody of your children. If a parent disparages the other in the presence of their children and causes emotional and or physical harm to their children the courts may deed that parent unfit to be the custodial parent. Furthermore, if that parent is unable to amicably communicate with the other regarding issues of the child's health, educational and religious Instruction they may relinquish his or her rights to joint legal decision making.

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What can I do if I am unable to pay a firm's divorce retainer?

If there is a significant disparity in income and assets between you and your spouse, your attorney may make a motion to the court to direct your spouse to pay for your counsel fees. In addition, your attorney may make a motion for interim "pendente lite" relief requesting that your spouse pay temporary spousal and or child support including but not limited to contribution and payment towards the household expenses and carrying charges pending final determination at trial as to a permanent award.

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Now that I commenced a divorce proceeding, can I obtain a court order to compel my spouse to leave our martial residence pending the action?

A spouse may voluntarily agree to vacate the martial residence but he or she should always consult with an attorney before doing so. To vacate the marital residence without a written agreement may have profound impact on the grounds for divorce, custody and visitation. If a spouse can obtain a "stay away" order of protection from the courts by proving domestic Florence then he or she must vacate the marital premises.

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New York is the only state which holds that any professional license, such as a medical license, law license, architect’s license, or nurse's license, is marital property which may be independently valued and divided.