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Common Questions,
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My new husband would like to adopt my child. Is this possible under New York Adoption Laws?(NY)
Yes – if he qualifies under New York Adoption Laws as an adoptive parent and the biological father’s parental rights have been waived or terminated then adoption is possible. This process is known within the law community in New York, and other states, under the term – step parent adoption.
(Courtesy of Association of the Bar of the City of New York)
Is it a long waiting list to adopt a newborn in New York? (NY)
No – a search conducted with experienced adoption consultants need not be a lengthy process. Under New York Adoption Laws a lot will depend on a prospective adopter’s profile and preferences.
(Courtesy of Association of the Bar of the City of New York)
Is it possible to become pregnant and give birth at age 45? (NY)
Yes, it is possible. It may require working with an egg donor. This might entail becoming a party to an egg donation agreement, depending on the viability of your own eggs.
(Courtesy of Association of the Bar of the City of New York)
I have been married to my husband for 25 years. He works for the police department. We have two teenage children. I am a homemaker. We bought a house three years ago. My husband owns a stamp collection. What rights do I have to his assets? (NY)
New York matrimonial law grants the wife marital interests in all marital assets, including pension, 401K Plan, savings and checking accounts, stamp collection, etc. from the date of marriage to the date of the Summons for Divorce. Generally, if there are no custody issues, the husband will have to pay child support for the children until they are age 21 years old. Family law dictates child support payments to equal 25% of the gross salary, minus FICA, City Tax and Medicare. The husband may be ordered to pay maintenance sometimes called alimony to the wife until she regains a place in the work force. The cost of reeducation, in case of a long absence from employment, may also be ordered to be provided by the husband under New York matrimonial law.
The parties will share equally in the net proceeds of the house. The wife may claim exclusive occupancy of the marital home for the family until the youngest child reaches 18 years old or even 21 years old, at which time the house will be sold. Matrimonial law stipulates that certain issues are required to be met, such as house maintenance for up to 6 to 8 years. This includes mortgage, gas, electricity, repairs, and other utility expense. Another issue is when the husband is made to leave the marital home. If there's no abuse by the husband and no Order of Protection, then both parties will live under the same roof until the parties come to an agreement or an Order of Protection is issued or the case goes before a judge to decide.
(Courtesy of Association of the Bar of the City of New York)
My girlfriend recently left me, took our children with her, and keeps telling me that she is moving to California. I am afraid that I will never see my children again. Is there anything I can do? (NY)
The first step under the circumstances would be to decide whether custody or visitation with the children will be sought. Family law in New York grants both parents of a child, regardless of whether they are married, an equal right to seek custody and any non-custodial parent must be afforded minimum visitation with their child. Regardless of which avenue is sought, custody and/or visitation rights must be delineated in a formal court order. This requires filing for custody or visitation rights at the Family Court in the county of residence. In cases where the other parent will be leaving the jurisdiction of the court, an order preventing relocation must be obtained at the Family Court. New York family law will not grant a parent permission to move to another state where such a move would interfere with another's parent right to visit with their child unless special circumstances apply.
(Courtesy of Association of the Bar of the City of New York)
My wife and I have decided to call it quits after five years of marriage. There are no children. We are both employed as teachers and have very few assets aside from our pensions. We reside in a co-op in Queens which I purchased before we were married. Do we each have to hire a lawyer and involve ourselves in an expensive divorce proceeding? (NY)
The answer depends on whether there are any disputes about the allocation of marital property. If the value of the pensions you accumulated during the marriage is roughly equal and if the value of the coop rose only due to market forces, and if there is agreement on the distribution of personal property, one party may commence what is referred in New York matrimonial law as an “uncontested divorce”. Using available forms and directions, it is possible to obtain a divorce without using lawyers at all. Or, one party could retain an attorney for a modest fee who would perform all the paperwork and court filing. If the spouse agrees to the arrangement by signing a consent form, the financial repercussions of the divorce would be minimal.
(Courtesy of Association of the Bar of the City of New York)
I am divorced and have legal custody of our two children aged 7 and 10. Our divorce decree gives my husband visitation every other weekend but he never visits more than once every two or three months and never lets me know when he is going to visit. I think this is bad for the children and I would like to stop his visitation. Can I simply deny him any visitation until he changes his ways? (NY)
New York matrimonial law does not allow amending a court visitation order without returning to court to request a modification of the existing order. It is possible to attain a modification curtailing visitation rights or making visits contingent upon granting reasonable notice to the visited party of an impending visit but until such a modification is achieved the court ordering visitation must be respected by making the children available for the court ordered visitation.
(Courtesy of Association of the Bar of the City of New York)
My wife and I have one child, aged 10. We are in the process of getting a divorce and my wife is seeking an enormous child support award. I have known for years that our child was not mine because my wife told me but I treated her as my own. Can I avoid child support? (NY)
The child must be supported even if a paternity test proves no relation to the child. New York family law has a doctrine called “equitable estoppel” which means that if a person acted in the manner of a parent for a substantial period of time, the courts will not permit an argument to be made contending the opposite because it would not be fair to the child to deny that which had previously been confirmed by word and action.
(Courtesy of Association of the Bar of the City of New York)
I have worked for New York City for many years and now I am getting a divorce. Does my wife have a right to my pension? (NY)
New York matrimonial law entitles a spouse to a portion of the pension which was earned between the date of marriage and the date an action for divorce commenced which was successful. The spouse may either get a share of the present value of the pension, in a lump sum, or, after the pension holder retires, the spouse may get a portion of the monthly payments. The matrimonial court determines the agreement or it may be agreed by the parties.
Although a spouse often gets 50% of the marital portion of the pension, a court need not grant 50% but may determine a lesser share, provided a reasonable situation for granting a less share exists. Matrimonial law stipulates if a spouse is granted a portion of the present value of a pension, then the pension has to be valued by an expert. This process normally costs about $500 in New York. Once the value is determined, then the pensioner would give the spouse his or her share of the present value by granting a money equivalent, or it may be decided to offset the value of the spouse’s share against other property that may be granted to the pensioner. For example, if the present value of the pension is worth $100,000 and the spouse is entitled to $50,000, and there is a jointly owned house worth $100,000, the spouse’s claim to the pension may be satisfied granting the spouse ownership of the house.
(Courtesy of Association of the Bar of the City of New York)
Is my husband entitled to a share of all property I acquired during the marriage? (NY)
Several types of personal assets are protected under New York matrimonial law. These include inheritance, compensation received from an accident, and gifts received from someone other than the spouse. These may be further explained by a New York attorney specializing in matrimonial law.
(Courtesy of Association of the Bar of the City of New York)
Over my objections, my husband has incurred significant credit card debt. Am I responsible for any part of it when we divorce? (NY)
This depends on the circumstances under which the debt accumulated. The court has broad discretion to decide how to divide property and how to allocate debts to a particular party. Generally, if the debt were incurred in connection with family needs or family entertainment, a court would declare both parties responsible for a share of that debt. If, however, the spouse incurred the debt by gambling or for evenings out when he partied with “the boys”, then it is more likely only the party take part in the activities will bear responsibility for that portion of the debt.
(Courtesy of Association of the Bar of the City of New York)
My son is 18 years old and my husband claims that when we divorce, he will not have to pay support for our son. Is he right? (NY)
No, he is wrong. In New York, unlike some other states, family law dictates child support terminates at the age of 21, not 18. It is possible, under limited circumstances, for a child between 18 and 21 to be declared “emancipated”. This deems children are on their own, able to take care of themselves, or have gotten so out of control that neither parent has any influence on their life course. If the child is not in school, or is working full time and has gotten married, that child certainly would be considered emancipated.
(Courtesy of Association of the Bar of the City of New York)
I understand if I am separated from my husband for a year or more, I can get a divorce in New York and do not need any other grounds. Is that true? (NY)
This is a common misconception. To obtain a New York divorce, one must establish that the spouse committed adultery, was cruel and inhuman, abandoned their marital partner for one year, or has been imprisoned for 3 years. In addition, a person can obtain a divorce on the ground of separation for one or more years, but the separation must be pursuant to (following) a written agreement of separation. This agreement must be in a proper form, and it must be shown the parties have substantially complied with that written agreement. A separation, unaccompanied by a written agreement, will not give rise to grounds for divorce under New York matrimonial law.
(Courtesy of Association of the Bar of the City of New York)
I have a complicated situation. I have been married for thirty years, and I put everything we own into my husband’s name just as a matter of course. Also, I work as a teacher in special education, but he is an executive on Wall Street and earns 7 figures (more than a million dollars) annually. This did not concern me until several years ago when we started fighting and the marriage has continued to deteriorate. He refuses to put anything in joint names and has threatened that if I seek a divorce, he will throw me out on the street, leaving me penniless. I also have reason to believe he has transferred the house we live in to his parent or to his brother. (NY)
Title to the property is not determinative under matrimonial law. Assets acquired during the marriage with funds earned during the marriage are marital assets, thus each are entitled to a marital share. Given the duration of the marriage, each share should be 50%. This includes any savings, pensions, stock market accounts, vehicles, real estate, art, and jewelry - anything assets acquired. If a home was purchased during the marriage, it is divided between the parties, even if purchased under only one spouse’s name. Matrimonial law grants this division even if the deed was transferred to a relation. In any divorce proceeding, the court can declare that transfer void and compel the spouse to reverse the transfer or grant joint ownership to each spouse. If residing in the same home is not a viable situation, the current controller of joint assets can be ordered to maintain the spouse during the pending divorce. If there is a refusal to pay, an income deduction order can be served upon the employer directing the employer to deduct the amount of any support award from the salary and issue a check to the spouse.
(Courtesy of Association of the Bar of the City of New York)
My wife has threatened to move out and take the kids with her and to prevent me from ever seeing the children again. I confessed to her that I had a brief fling with someone and while it is over, she wants nothing more to do with me and has threatened that she will use the affair against me and that is how she will keep me from seeing our two sons, ages 10 and 12. I really do not want to divorce, although this seems inevitable, and I am worried about her threats. (NY)
It is illegal to restrict a parent from seeing their children unless unfitness as a parent can be demonstrated. Thus while the spouse may be clearly angry with feelings betrayed, it is not possible under New York matrimonial law to utilize these facts to bar access to the children. Matrimonial law further stipulates obtaining a divorce on grounds of adultery require objective proof, and a confession by one party is not considered objective. Please note the grounds of a divorce are not relevant to how the property will be divided. Grounds for divorce are irrelevant to issues of equitable distribution, maintenance, and child support, except in extreme circumstances.
(Courtesy of Association of the Bar of the City of New York)
During my ten year marriage, my wife and I accumulated significant debt. During this last year my wife began using our credit cards to go on spending sprees, during one of which she charged $50,000 worth of jewelry at Tiffany's. We both work and have good jobs, but she has refused to make any payments towards these credit card bills, and in fact she has hidden many of them from me, claiming to have paid them. I only learned of how much we owe and that she has not been making the payments when I received a call from one of the credit card companies demanding payment and threatening to cut off the credit. She is clearly doing this to ruin my credit, but she is also ruining her own. I need to know what to do about this debt. (NY)
In general, debt accumulated during the marriage is joint therefore, both parties are responsible. However, such spending habits indicate the possibility for what is known in matrimonial law as "marital waste". If this were the case the spouse would ordinarily bear sole responsibility to repay the debt accumulated in this manner. Unless it can be shown that both parties enjoyed this marital lifestyle and that it was mutually supported, the spouse will be unable to show that this sort of spending was for a marital purpose.
(Courtesy of Association of the Bar of the City of New York)
Can I remain on my spouse's medical insurance plan at his job once we are divorced? (NY)
Once the judgment of divorce is entered, the marriage is terminated and joint coverage would end. However, pursuant to federal law (COBRA), a person is entitled to continue with the health insurance plan provided by the ex-spouse's employer at the same group rates for a period of 18 months, provided the person can make the premium payments.
(Courtesy of Association of the Bar of the City of New York)
Does New York have a "no fault "divorce law? (NY)
New York matrimonial law requires grounds in order to establish a party's right to a divorce (i.e. adultery, cruelty, abandonment, imprisonment). While not a true "no fault" ground, living separate and apart for a period of one year and in substantial compliance with a separation agreement that has been filed with the Court will constitute grounds without the need to allege misconduct on the other party. Legislation is pending which would establish a true no-fault" ground and bring New York in line with the other 49 states that do have "no fault" divorces.
(Courtesy of Association of the Bar of the City of New York)
I am considering having a pre-nuptial agreement executed prior to getting married for the second time. Can both parties use the same lawyer in order to reduce expenses? (NY)
One lawyer cannot ethically advise two parties in a contract with each other. It is highly recommended that both sides retain their own lawyers. One lawyer cannot adequately and objectively represent the interests of both parties to a pre-nuptial agreement. A party could challenge the validity of the agreement based on the fact that the same lawyer, usually one spouse's, both drafted the agreement and represented the other spouse. This would open conflict of interest issues.
(Courtesy of Association of the Bar of the City of New York)
Why do I need an divorce attorney? (New York State)
There are many misconceptions about divorce law in the State of New York. It is vitally important that anyone contemplating divorce speak to a knowledgeable lawyer to learn about his or her rights.
(Courtesy of The Association of the Bar of the City of New York)
What is "fault" or "no fault" divorce? (New York State)
New York is a "fault" state which means a divorce must be premised on grounds such as cruel and inhuman treatment, adultery, or abandonment, unless the parties have lived separate and apart for a period of at least one year pursuant to a written separation agreement, which is the only "no fault" grounds for divorce.
(Courtesy of The Association of the Bar of the City of New York)
What is a Legal Separation? (New York State)
In New York State, a "legal separation" means either that the parties have signed a separation agreement or a court has awarded a judgment of separation after trial. Simply living apart for a year or more has no effect on the status of the marriage.
(Courtesy of The Association of the Bar of the City of New York)
How do courts determine the custody of children? (New York State)
In New York State, custody is based on the best interests of the children as determined by the court after considering many factors. In general, unless the parties have an amicable relationship, the court will not award joint custody. Rather, it will award sole custody to one party. Custody consists of two main components: (1) "Legal custody", which means the power to decide the children's religion, school, medical issues and the like, and, (2) "Physical custody" which refers to where the children reside (often expressed in terms of a visitation schedule). The law is gender neutral; that is, neither parent is presumed to be the more fit parent.
(Courtesy of The Association of the Bar of the City of New York)
How is property distributed in a divorce? (New York State)
With regard to distribution of property in a divorce action, New York is an "equitable distribution" state. This means that the court has the power to divide marital property regardless of which party owns the property. All property acquired during the marriage, unless it is separate property, is subject to distribution by the court. Separate property includes premarital property, gifts to a spouse by someone other than the other spouse, inheritances and compensation for personal injury. In New York, the court has the power to distribute the value of educational degrees and licenses acquired during the marriage, as well as professional practices (such as a doctor's or a lawyer's practice), business interests, pensions and all manner of stock accounts, bank accounts and the like. The court must divide the property "equitably", but it need not do so in equal shares to both parties. In longer marriages, the courts generally divide property 50/50 but may not do so in shorter marriages. Each case is governed by its own facts.
(Courtesy of The Association of the Bar of the City of New York)
Is there alimony or spousal support? How does it work? (New York State)
The court has the power to award support to a spouse which is called "maintenance". Maintenance can be permanent, that is, until the death or remarriage of the recipient spouse or it may be for a defined term of years. The court must consider various factors in determining what is a fair and equitable amount of spousal maintenance. In general, in a short marriage, the maintenance will be for a short period of time and, as the length of the marriage increases, and with the birth of children of the marriage, the length of maintenance may increase.
The court also has the power to order a spouse to provide medical and life insurance for the other spouse.
(Courtesy of The Association of the Bar of the City of New York)
When do you have to pay child support? (New York State)
Child support is governed by a specific statute called the Child Support Standards Act. Under this law, the non-custodial parent must pay to the custodial parent a cash payment on a regular basis (such as every week or every month) and also contribute towards child care (if the custodial parent is working or attending school to enhance his or her employability) plus a contribution towards medical insurance and medical expenses of the children. The court also has the power to direct the parents to contribute to private school and college as well as enrichment programs such as after school activities and summer camp.
(Courtesy of The Association of the Bar of the City of New York)
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