Frequently Asked Questions

+ What is the difference between an uncontested and a contested divorce matter?

An uncontested divorce matter, in its simplest form, means that the parties have come to some agreement about the terms of settlement. If there are children of the marriage, it means that both legal and residential (physical) custody have been decided and that child support has been calculated. If there is property, the parties have determined how it will be distributed, whether it be a buyout or a sale. Likewise, claims for retirement assets, bank accounts, spousal maintenance and counsel fees have all been addressed. If you and your spouse have reached a total agreement about the issues in your divorce you can proceed with a fully uncontested proceeding.

A divorce becomes contested when it is clear that you and your spouse cannot reach an agreement and as such, one of you has filed the required documents to get a court date. It means you are submitting to the jurisdiction of the court and requesting a judge’s assistance in reaching the terms of your divorce matter. Not all matters are straight contested or uncontested. There is grey area, in which the parties negotiate through attorneys outside of court. When parties don’t necessarily have an agreement, but are committed to resolve the matter without court intervention, our attorneys can work with opposing counsel to hammer out the terms without the need to involve a judge.

+ Can you mediate my divorce matter? Do you suggest mediation?

Our office advises against mediation. Mediators are attorneys that don’t technically represent you or your spouse. He or she works as an intermediary to explain the law as it pertains to your specific set of circumstances and help negotiate a resolution together. Those who are actively committed to reach a resolution are the ones who generally decide to go down this route. The problem is, in the event that you and your spouse reach an agreement reduced to writing and for one reason or another, someone doesn’t sign, you are essentially starting from scratch. Neither you or your spouse can use mediator as their own attorney, so you would have to find and hire a new attorney to start the process from the beginning. It’s always best that each party is individually represented, so that someone is fighting for your individual rights. The right attorneys can help you efficiently negotiate a fair settlement.

+ What is a legal separation?

In NY, a legal separation is one ground for divorce. For the most part, people used this ground prior to 2011, before New York’s “no fault” ground. Since that time, separations have generally been used to give a spouse more time on the other party’s health insurance. However, health insurance companies have since made it much more difficult to do this. If you and your spouse are unsure if this is truly the end, and you want to address terms of settlement for the sake of putting those concerns to the side you may also file for separation. If, after one year, you are sure you want to move forward with a divorce you can simply convert your separation into a divorce under the agreed upon terms.

+ Who should consider a prenuptial/postnuptial agreement?

The purpose of a prenuptial or postnuptial agreement is to take control over your finances and bypass the laws that govern domestic relations. In NY, everything earned or purchased during the marriage is considered marital, despite what the title says. Speak to an attorney to familiarize yourself with the laws in NY, so that you can decide if you and your significant accept their categorization of property or if you’d like to decide for yourselves.

+ Who is entitled to spousal maintenance?

Where there is a significant difference between the parties’ earning there may be a claim for maintenance (or what some know as alimony). The higher earner may be designated to make a monthly payment for a certain period of time, depending upon the length of the marriage, to allow the lower earner time to transition. An attorney can explain the complex way these calculations are reached and how maintenance is affected by child support.

+ How can I obtain custody of my children?

There are two arms of custody: Physical (residential) custody refers to where the child lives. Legal (decision-making) custody refers to how decisions regarding medical, education and religion on behalf of the children are made.

The first thing the court considers is who is the primary caretaker? If both parents are involved, the courts prefer shared custody arrangements or liberal parenting time as close to a 50/50 split as possible. This is only possible where the parties reside in close vicinity and can both get the children to and from school and activities. Where shared schedules are not practical, there are no limits to the way schedules can be arranged. What’s most important is what’s best for the children.

The courts also favor joint legal custody. However, where the parties are unable to communicate, legal custody is more likely granted to the custodial parent. A middle ground can include joint legal custody with a tiebreaker (e.g. a parent coordinator) or “spheres of influence”, in which one parent makes medical decisions and the other makes educational decisions.

Finding an arrangement that’s best for your family can be negotiated through attorneys. If the parties are unable to come to an agreement, the Judge and his/her staff will make that decision for you after a trial.

+ How does child support work?

The non-custodial parent is responsible for paying child support to the custodial parent. The amount of child support depends on the non-custodial parent’s income and how many children the parties have together. Where the parties have an exact 50/50 split the higher earner is responsible for child support. Depending on the difference in income of the parties, the court can deviate from the calculations and order a lower amount. Basic child support is for the specific purpose of food, shelter and clothing. However, the court may also order “add-ons” for child care and unreimbursed medical expenses.

+ Can I modify my current child support order?

Orders entered after October 2010 can be modified if three years have passed, there is a change in come of either party by 15% or there has been a “significant change in circumstance.” A significant change is discretionary, but generally needs to be unforeseen or unpredictable. Change in custody is also a basis for a modification.

Orders prior to October 2010 can only be modified where there is an unforeseen significant change in circumstance

+ Can I modify my current custody order?

In order ask to change custody there must be a significant change in circumstance. If children are old enough to articulate their position they, with their attorneys, will play a big role in making a change. However, attorneys appointed to children are trained to spot coaching and children’s wishes are important, they must also be backed by a legitimate reason.

+ What is a Writ of Habeas Corpus?

Where a child is not returned to a parent pursuant to a court order, you may file a writ of habeas corpus, where the court will order that the other party show up with the child to the courthouse.

+ How do I obtain custody over a non-biological child?

In situations where you want to take legal responsibility for a child who is not your own, you may file a petition for guardianship with the family court. Where there is a biological parent who is fighting this request you must first establish that you have the right to ask for guardianship. Has the resided with you for an extended period of time? Has the parent been absent or abusive to the child? Is there some “extraordinary circumstance” present to give you the right to proceed. If you pass the first step, you will then have to prove that it’s in the child’s best interest to be with you.

+ What are my rights as a grandparent?

In New York, grandparents have relatively liberal rights to file for visitation. As a rule of thumb, if both parents are actively involved in the child’s life, a grandparent is expected to spend time with the child while they are with their respective parent. However, where one parent is not involved or has passed away, or where there was a close established relationship in the past a court may grant a grandparent their own carved-out time.

+ I’ve been served with a petition alleging abuse/neglect (Article 10). What do I do?

There are times where ACS/CPS investigate a situation and determine that there is reason to believe abuse or neglect occurred. When this happens they may file an Abuse and Neglect proceeding against you in family court. Often times these situations arise out of a child getting injured or appearing to have bruises or marks on their body. An attorney can help you navigate a plan to rehabilitate the situation and minimize the impact it can have on you and your family.

+ I want to dismiss/expunge/seal an ACS/CPS indication. How do I go about getting a fair hearing with OCFS?

Sometimes ACS does not file an article 10 proceeding, but still finds that there is substantial evidence to “indicate” you for abuse or neglect. This means your name will show up in a registry check. In order to expunged, dismiss or seal these records you may request a fair hearing to review your case. An attorney can help you navigate a hearing based on your specific set of facts.