Family Law

How do I start a divorce case, and what legal requirements do I need to meet?

(1) Residency: Before a New York Court can give you a divorce, you need to show that you and/or your spouse have lived in New York State for a certain amount of time, without interruption, generally for one year.

(2) Grounds: You need to have grounds – a legally acceptable reason – to get divorced in New York. That means that you need to prove one of the grounds listed below:

Cruel and Inhuman treatment
Abandonment
Confinement in prison for 3 or more consecutive years
Adultery
Living separate and apart pursuant to a separation judgment or decree
Living separate and apart pursuant to a separation agreement
Irretrievable breakdown in the relationship for a period of at least 6 months (for divorce proceedings started on/after October 12, 2010)

Then, you will need to buy an Index Number at the County Clerk’s Office and file a Summons with Notice or a Summons and Verified Complaint (which has the reasons for the divorce). Then, you will need to have a person who is not a party to the action, that is over the age of 18, serve your spouse with the papers. For more information on filing fees, completing and serving papers, placing your case on the court’s calendar, and other procedures, please contact us online.

What is the difference between an uncontested and contested divorce?

An uncontested divorce applies to a marriage that has lasted for at least six months where there are no children under 21, and all marital property issues, including debt, have been settled.

A contested divorce Your divorce will be contested if either you or your spouse:

Do not want to get a divorce
Disagree about the grounds (legal reasons) for the divorce
Disagree about what will happen with your children, your finances, your property after the divorce

Because the judge will require detailed information to decide the issues you disagree about, your contested divorce will require you and your spouse to go to the Supreme Court numerous times. If your divorce will be contested, you should seriously consider finding a lawyer to represent you.

You might want to consider divorce mediation or collaborative family law.

Do I need a lawyer to get divorced?

Divorce law can be complicated so you should meet with a lawyer , even if you think your divorce will be uncontested. If you have parenting or financial issues to work out, you may want to consider alternative dispute resolution (ADR) processes like divorce mediation or collaborative family law. These out-of-court processes often save time and money, reduce stress, and even improve relationships between parents and their children after divorce. ADR may not be appropriate in cases involving domestic violence, child abuse, or where one spouse cannot locate the other.

How will a judge decide custody?

When determining custody and visitation, a judge will consider what is in the best interests of the child(ren). Some factors a judge may consider include:

Who has been the child’s primary caretaker
The quality of each parent’s home environment
How “fit” the judge thinks each parent is (stable home and lifestyle, good judgment, has a job, good mental and physical health)
Which parent the child is living with now, and for how long
Each parent’s ability to provide emotional and intellectual support for the child
Which parent allows the other parent into the child’s life (does not try to cut out the other parent)
If the child is old enough, which parent the child wants to live with
Whether your child would be separated from any siblings
Whether either parent has been abusive

A judge must consider whether there has been domestic violence.

How does a court calculate child 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:

17% for one child
25% for two children
29% for three children
31% for four children
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. How to Calculate Child Support.

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