What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce. There is no such thing as a "no-fault" divorce in New York.
What is a legal separation?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, maintenance (alimony), property and debts. Grounds for a legal separation are required as well. A decree of legal separation cannot automatically later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.
What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
Does One Have to Go to Court to Obtain a Divorce, Legal Separation or Annulment?
Yes. A court of law is the only place where one can obtain a divorce, legal separation or other form of dissolution of marriage in New York. Other than terminating the marriage, the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage such as custody and visitation, division of marital property, spousal support, and child support.
Do I need a lawyer or can I use a divorce kit or preprinted forms that are available?
Family law is a complex area of the law which is not well served by simplistic forms that do not address all of the issues and areas concerned. If an individual is not well versed in the law, or has not consulted with appropriate legal counsel to review the facts and problems of their individual case, the lasting and costly effects of decisions made in haste without proper advice would militate against the use of such forms. The expenditure of funds in hiring an attorney to have your rights protected and your divorce done correctly the first time, may save personal anguish as well as thousands of dollars in legal fees down the road.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality. Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest.
What Is Child Support?
While it is the legal obligation of BOTH parents to support their children, what is generally thought of as child support is a payment by the non-custodial parent to the other parent for the support of their common children. It is in the best interest of a child for both parents to be obligated to pay for the support of that child.
What Is Child Support Used For?
Child support is intended to provide for a child's needs, during the growth and formative years. In addition to child support, a non-custodial parent may be required to contribute towards child care and unreimbursed medical expenses for their child.
Who Can Be Ordered to Pay Child Support?
A court can order either parent of a child to pay support to other parent. The parent receiving child support may request that such payment be made through income garnished directly from the non-custodial parent's employer. The employer may not fire the paying spouse because of the wage garnishment for support.
When Can a Child Support Order Be Changed or Modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by agreement between the parents (as long as guideline support factors have been accounted for) or by the court after a hearing.
How Long must Child Support Be Paid?
You must support your children in New York until they reach the age of twenty-one (21). Child support can be terminated earlier in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.
How Is the Amount of Child Support Determined?
In New York, the child support obligation of both parents is set forth by statute. The income of both parents is combined, and a child support amount is set based upon such combined income, in accordance with a formula set forth in the law. The amount of money the non-custodial parent is required to contribute to this set support amount is based upon that parent's percent of the combined parental income.
The statutory formula aside, as a general rule, a non-custodial parent can expect to pay seventeen (17%) percent of his or her gross income (less limited deductions) as and for the support of one child, twenty-five (25%) percent of his or her income as and for the support of two (2) children and twenty-nine (29%) percent of his or her income as and for the support of three (3) children.
