Family Law FAQs

Personal injury cases are handled on a contingency basis. This means that the attorney receiving a fee is “contingent” upon you getting a recovery in the case. In other words, the attorney only gets paid if you win or settle your case. If you are successful in your claim, the attorney will be paid a percentage of what you recover. This type of fee arrangement eliminates the risk to the client that they will have a large legal bill to pay if they do not recover on the case. Clients who have sustained an injury have already suffered a loss. They may have unpaid medical bills or be out of work due to their injuries. Most would not be able to bring a claim if they had to pay an attorney by the hour. This type of fee arrangement enables all injured people, regardless of their financial means, to be represented by highly skilled attorneys.

A prenuptial agreement is basically a Separation Agreement (see above) that parties negotiate and sign before they are married (and before they have marital difficulties) which outlines how the parties will address and resolve any marital issues in the event they later separate or divorce. Doing a prenuptial agreement (at a time when both parties are “agreeable”) while not “necessary” can help to avoid difficulties and disagreements that often accompany the ending of a marriage.

Yes, the law entitles you to return to any maiden name or prior surname upon the granting of a divorce. This is specifically recited in the Judgment of Divorce.

Yes, since a QDRO can only be done following a divorce, it is not part of the divorce process. Obtaining a QDRO can be an extensive, involved and complicated process which involves your spouse, your spouse’s attorney, the court and the plan administrator. If you are entitled to share in multiple retirement accounts or benefits, a separate QDRO is usually required for each account. As a result, the additional cost of obtaining a QDRO can be substantial. However, it is a necessary expense to secure your interest in these retirement benefits.

No, but it is advisable to do so. Since a QDRO secures your interest in your spouse’s retirement benefits, the longer you wait, the longer you have not secured your interest and the greater the likelihood that something could impact your interest. In addition, if you wait a substantial period of time, relevant data and information may no longer be available which can make the preparation of a QDRO substantially more difficult and potentially impossible.

If you are entitled to a share of your spouse’s retirement, the Judgment or Decree of Divorce will establish your rights in this regard. However, the Judgment does not transfer this interest to you, but merely identifies your rights. You need a QDRO to direct the plan administrator to transfer the funds into your own account and/or send you a check for your share of any monthly pension payments. Otherwise, your interest will remain in your spouse’s account and/or your share of the monthly payments will be sent to your spouse, and you will need to rely on your spouse to provide you with your interest. This tends to be a highly unreliable method of receiving your interest and is difficult to enforce if it isn’t done.

Actually, it’s “QDRO”, which stands for Qualified Domestic Relations Order. A QDRO is a special court order which directs the plan administrator of a qualified pension or retirement plan to distribute retirement benefits to the spouse of a participant. In the absence of this order, the plan administrator is not permitted to distribute the funds to anyone other than the participant. (See the “Qualified Domestic Relations Orders” page under the Family Law practice area).

A Judgment of Divorce is a court order. The failure to meet the obligations under a Judgment of Divorce is a violation of that court order and, consequently, an application can be made to the court, seeking further judicial assistance in enforcing the terms of the order. (See the “Post Divorce Enforcement and Modifications” page under the Family Law practice area).

Your divorce documents are all filed in the Office of the County Clerk of the county where your divorce was granted. You, your former spouse or your attorneys can obtain copies of any documents on file, but they are otherwise private. The Clerk can also provide you with “Certified” copies of your documents, which is often a requirement if you are using the copies for formal purposes. The Clerk will charge a nominal fee to provide you with copies.

No, in fact once you are divorced, you are not permitted to file jointly since you are no longer married. Prior to a divorce, however, it may be in the best interests of both of you to consider filing a joint return since you both might save money by doing so. You should consult an accountant to make this evaluation. Of course, filing a joint tax return with an estranged spouse can be difficult and requires a good degree of cooperation. It also requires an agreement as to how the refund (or obligation) will be shared between the two of you.

Not necessarily. Courts will often require coverage to continue until the divorce is complete. However, following a divorce, you are no longer related to your spouse and your spouse cannot continue to cover you under as a family member. However, you may be entitled to continued coverage under the COBRA provisions but who will pay the cost of this coverage would need to be determined and this coverage is not indefinite.

Not necessarily. The answer to this question requires the consideration and analysis of multiple factors before a decision can be reached.

For people who have signed a Separation Agreement or who are granted a Judgment of Divorce on or before December 31, 2018, alimony payments (referred to in New York as spousal maintenance payments) that are made pursuant to those Agreements or Judgments (or subsequent modifications to those Agreements or Judgments) will still be tax deductible to the party paying the maintenance and includible as taxable income to the party receiving the maintenance. However, for Agreements signed or Judgments granted after December 31, 2018, maintenance payments will no longer be deductible to the party paying the maintenance and will no longer be considered as taxable income for the receiver party receiving the maintenance.

Spousal maintenance (often referred to as “alimony”) is the payment from one spouse to another, upon a separation or divorce, as a contribution toward his or her support. The law provides for a calculation, based on each spouse’s income, that establishes a presumptive amount of maintenance (if any) to be paid, both while a divorce is pending and following a divorce. These amounts are not necessarily the same. The law also provides for a presumptive duration of post-divorce maintenance payments, based on the length of the marriage. However, the law further provides for a deviation from these presumptions, upon appropriate circumstances, based on multiple factors that are to be taken into consideration in determining the appropriate amount of maintenance while a divorce is pending and the amount and/or duration of post-divorce maintenance.

You are not obligated to the creditor for your spouse’s debts. However, debts that were incurred by either party during the course of the marriage are presumed to be “marital” and responsibilities for marital debt will be allocated equitably between the parties. There are, however, various reasons that the presumption will be rebutted, including when one party receives the benefit derived from the obligation and equity demands that the party receiving the benefit be responsible for the obligation.

An interest in a professional practice or a business, to the extent it was obtained during the marriage, is considered a marital asset that is subject to equitable distribution between the spouses..

An advanced degree or professional license is not considered to be a marital asset to be valued and divided between the parties. However, in determining equitable distribution of other marital assets, the court is required to consider a spouse’s direct or indirect contribution, during the marriage, to the other spouse’s development of an enhanced earning capacity. Therefore, while enhanced earning capacity is not considered to be a marital asset to be divided, it can be a factor in determining the division of other marital assets.

Yes, if you were married more than 10 years. This is governed by the Social Security regulations and is not and cannot be changed by a divorce.

Yes, if it was accumulated during the marriage. Amounts accumulated in retirement accounts during the marriage (plus gains or minus losses) are subject to division. A calculation is applied to pension benefits to determine the spouse’s interest in monthly retirement payments.

New York is an “Equitable Distribution” state, meaning that all marital assets (and debts) are divided equitably or fairly between the parties. Although equal is often fair, it is not always the case.

No. The only assets that are subject to division in a divorce are “marital assets”. Generally, anything that was accumulated by either party during the marriage is considered to be marital property. However, anything accumulated by either party prior to the marriage, anything inherited by either party (even if during the marriage) and anything received as a gift by either party from someone other than their spouse (even if during the marriage) is not considered marital property and is not subject to division.

The IRS establishes rules for claiming head of household filing status. The right to claim head of household cannot be agreed upon or determined by the parents and, instead, the IRS rules will govern.

Through 2017, the IRS allowed separated or divorced parents to determine which of them would claim their minor children as a tax deduction. However, income tax deductions for minor children have been eliminated as of 2018. Consequently, for tax years 2018 and beyond, minor children can no longer be claimed as a tax deduction by either parent.

Possibly but not necessarily. This depends on the specific circumstances.

When the child reaches 21 years of age, or earlier if the child is self-supporting. It is possible to agree upon certain other events that would terminate the obligation for child support before age 21 or extend it beyond age 21.

Childcare required to permit both parents to remain gainfully employed or to pursue education are also allocated on a “pro-rata” basis, in accordance with the respective incomes of the parents. (See the “Child Support Issues” page under the Family Law practice area).

Both parents are required to contribute to the cost of health insurance and health care for the children. These expenses are generally allocated on a “pro-rata” basis, in accordance with the respective incomes of the parents. (See the “Child Support Issues” page under the Family Law practice area).

You can’t. There is no obligation to account for the use of child support and, in fact, there is no obligation to use child support for the children. However, once support is paid, the custodial parent is responsible for the expenses of the children and if these expenses are not being met, an application can be made to court for the failure of the custodial parent to properly support the children.

All expenses of the children are covered by child support payments, with the exception of health insurance, health care, child care and college expenses, which are independent of child support payments.

Child support can be modified upon a showing of a substantial change of circumstances. It is also reviewable every three years and upon a 15% or greater change in gross income, but may be reviewed more or less often upon mutual agreement. (See the “Post Divorce Enforcement and Modifications” page under the Family Law practice area).

Yes, but only under limited and compelling circumstances and only upon approval of the court.

Child support payments are determined by law (referred to as the “Child Support Standards Act”.) The amount is calculated based on income and the number of children being supported and, therefore, is different for each individual. (See the “Child Support Issues” page under the Family Law practice area).

Under most circumstances, if a child is not yours, you would not be responsible for the support of the child. However, there are certain exceptions and presumptions that may modify this general rule. If you are not sure a child is yours, it is usually wise to confirm paternity. (See the “Paternity Issues” page under the Family Law practice area).

Parents are generally charged with the support of their minor children. Consequently, except under unusual circumstances, most parents are required to provide for the support of their minor children.

At age 18. However, courts will consider the wishes and preferences of children at a younger age. The weight given to the wishes of a child will depend on a number of different factors and not exclusively on age.

Yes, but it would typically be necessary to show some degree of a change of circumstances from when the custodial arrangement was previously established.

Yes. However, they are less than those of parents, depend on the specific circumstances and, again, are based on the best interests of the children.

You can get as much (or as little) time with your children as you and your spouse can agree upon. If you are unable to agree, the court will make this determination, based on the best interests of the children after considering the specific and unique circumstances.

The determination of custody of minor children is based solely on “the best interests of the children”. If you and your spouse are unable to agree upon (or reach a compromise) in this regard, the court will make a determination (after a hearing or trial) as to what is in your children’s best interests and will establish custody accordingly. (For a further discussion, see the “Custody Issues and Disputes” page under the Family Law practice area).

A Separation Agreement is a written document, signed by both spouses, which establishes all of your marital rights and responsibilities as if you were divorced. The terms of this Agreement are negotiated and established by the spouses (usually with the assistance of their attorneys) and therefore judicial intervention is not required. The Agreement provides that, should the parties seek to be divorced at any time in the future, the terms of the Agreement will be the terms of the divorce. Consequently, once the parties have entered into a Separation Agreement, since all of the marital issues have been resolved, the divorce is substantially uncontested.

Not necessarily. If you and your spouse (with the assistance of your attorneys if necessary) can resolve your marital issues without involving the courts, the terms of your resolution can be recited in a document (commonly referred to as a “Separation Agreement”, a “Property Settlement Agreement” or an “Opting-Out Agreement”) which can then be presented to the court for review and approval, all without you needing to go to court. However, if you cannot resolve your differences, going to court to seek a judicial determination of your issues would be necessary.

If your spouse asserts fault-based grounds for a divorce, you can oppose the divorce by requiring your spouse to prove the grounds asserted. No such proof is required for a “no-fault” divorce. However, a “no-fault” divorce cannot be granted until all other issues are resolved.

No, there is no “waiting period” for a “no-fault” divorce. (However, some of the other grounds for divorce have time-based requirements that may apply.)

New York no longer requires “grounds” to be proven to become divorced. Either spouse may simply assert that the marriage has been “irretrievably broken” for six months or greater in order to be entitled to a divorce. (However, before a “no-fault” divorce will be granted, all financial and child-related issues must be resolved or otherwise determined by the court.)

In order to commence a divorce action, New York law requires that the initial documents be personally delivered to your spouse (by an adult other than you). Consequently, it is necessary to locate your spouse in order for this to be done. Under certain very limited circumstances, the Court may consider granting permission to serve your spouse in a different fashion, but this is extremely unusual.

No. There are various requirements involving New York residency and other contacts to New York which must be satisfied before New York will consider a divorce matter.

One attorney cannot represent two parties who have potentially different legal interests. However, there are various Dispute Resolution Alternatives that may reduce or avoid the necessity of each party retaining an attorney or may limit the level of services required from an attorney. (For a further discussion, see the “Dispute Resolution Alternatives” page under the Family Law practice area).

Typically, each spouse pays for his/her own attorney’s fees. However, under certain circumstances, your spouse may be required to pay for or contribute to your attorney’s fees, particularly if your spouse earns substantially more than you or if you have insufficient funds to retain an attorney to pursue or defend a divorce.

Since everyone’s situation is different, the amount of time it takes to resolve any outstanding marital issues and to provide the Court with the necessary information and documentation required to complete a divorce is also different. Further, if you and your spouse are unable to reach an agreement on any issues, the Court will need to make a determination after an evidentiary trial, which takes additional time. Given the steps that need to be taken, it is likely that any divorce will take several months to complete, but disputed divorce matters can take much longer.

Attorney’s fees in divorce matters are based on the amount of time expended by your attorney on your behalf. Since everyone’s situation is different, and certain matters are more complex than others, there is no fixed or standard cost for a divorce. (For a further discussion, see the “Attorney’s Fees” page under the Family Law practice area).

Technically no. You are always entitled to represent yourself. However, if you need assistance, only a licensed attorney can represent you. There are many issues and potential pitfalls involved in divorce matters and it is usually a good idea to seek legal counsel.

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