New York Divorce, Justice Denied and Legal Services Alternative

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It Won't Be Easy

Although divorce is technically nothing more than a court order, the real divorce is about ending one way of life and building a bridge to another. That inevitably raises issues of security and identity.

When we feel helpless, most of us settle for far less than we are capable of achieving. We unnecessarily allow our self-imposed, limiting beliefs to trap us in the role of feeling helpless. This is especially true during divorce, when we must make decisions that may ultimately shape our entire future.

But by exerting control over your situation, you can avoid settling for less than you deserve. By understanding the legal issues involved in your divorce, you will gain the knowledge and confidence to put together the best settlement possible. Having knowledge to help you make the right decisions and help tailored to your needs in compiling the legal documents you will achieve the best outcome in the near and far term.

You Must Assert a Reason

Unlike most states, New York is not a "no-fault" state. In New York a court will grant a divorce only if:

The couple has lived apart for a year under a written, notarized and acknowledged Separation Agreement that usually must be filed with the court for at least one year, or

The person seeking the divorce proves one of the grounds listed below.

Abandonment. A spouse has been gone from the marital home for a year or more, without good reason -- and without the apparent intention to return.

Adultery. A spouse voluntarily has sexual intercourse with someone other then the other spouse.

Constructive Abandonment. Spouses have not been intimate with one another for a year or more.

Confinement in prison. A spouse has been in prison for three years or more during the marriage.

Cruel and Inhuman treatment. One spouse endangers the physical or mental well-being of the other or impairs his or her physical or mental health and happiness. This is the most frequently used grounds for divorce in New York.

Accusing your Spouse

Many people choke at the thought of labeling the reason they want a divorce as cruel and inhuman treatment by their spouse. But if you think of this matter the way lawyers do, you will have an easier time of it. Over the years, the courts have allowed the phrase "cruel and inhuman treatment" to mean virtually any type of behavior that would justify a reasonable person's filing for divorce. And so, when you allege cruel and inhuman treatment you are really saying treatment that justifies a divorce under New York law.

Dividing Your Property

You and your spouse may divide your property in any manner you choose. If you aren't sure how to proceed, take a good hard look at your situation. And take your time -- if you're upset or angry when you make decisions, you may agree to arrangements that make emotional, but not economic, sense. Remember that some decisions may have long-term consequences. For example, you may be strongly attached to a particular wedding gift, but it may not be wise to insist on keeping it if your spouse uses it as leverage to keep the family car, which you really need to get to and from work.

New York is what's known as an equitable distribution of property state. The theory behind equitable distribution is that marriage is an economic partnership and that assets acquired during the marriage -- called marital property -- are the product of that partnership to be divided when the marriage ends. The theory of equitable distribution is that a judge divides the assets fairly, considering the facts and circumstances of each individual marriage. It does not necessarily mean that the assets will be divided equally.

Men, Women and Custody of the Children

In general, custody refers to guardianship of a child. It has two important legal components: physical -- the authority to have physical charge of a minor child, and legal -- the authority to make decisions about the health, education and welfare needs of a minor child.

New York no longer presumes that a mother is more able to care for children than a father. Instead, courts must presume that the parents are equally capable of parenting.
Many judges, however, still hold traditional views of parenting, especially for young children. Realistically, many households have adapted traditional arrangements where the wife is the primary caretaker. As a result, in most cases the mother is granted physical custody, despite the gender-neutral language of the laws. This is changing slowly, however, as family life and judicial stereotypes evolve. If you are a father who has been equally or primarily involved in child care responsibilities, you have a better-than-ever chance of obtaining custody.

Deciding on Visitation

If one parent will have sole or primary physical custody, the other parent is generally entitled to reasonable visitation. What is considered reasonable depends on the totality of the circumstances--including the child's age and daily routine or schedule. At a minimum, however, visitation should be sufficiently long and frequent enough to be meaningful.

The following represents what judges currently consider to be a typical, minimum, reasonable visitation schedule for most children, until they reach their teenage years:

Setting Child Support Payments

In general, parents are legally responsible for the adequate support of their natural or legally adopted children until the children reach 21 years of age. The support obligation includes food, shelter, clothing, medical care, education and other reasonable expenses, such as child care. Neither parent can give up a child's right to support.

New York's Child Support Standards Act encourages the application of a child support formula when determining the support amount. Basically, you total up each spouse's gross income and reduce those amounts by certain deductions. Then combine the two incomes and multiply the first $80,000 by a set percentage based on the number of children to find the basic child support obligation. If the combined incomes exceed $80,000, you allocate another amount for child support from the excess income. Then add together the two amounts. Finally, other costs, such as child care, healthcare and education are added.

Alimony: A Rare Bird

Alimony -- called maintenance in New York -- is money paid by one ex-spouse to the other ex-spouse for support after a divorce. Currently, maintenance is awarded in only about 15% of divorces in New York; 90% of the time, ex-husbands pay ex-wives. If you're seeking both child support and maintenance and the paying spouse has limited funds, the court considers child support the priority. If there are not enough resources to afford both, you probably can't get maintenance, even though you may be legally entitled to it.

Spouses can agree to any amount of maintenance they want, including none at all. In determining whether or not a spouse is entitle to maintenance, a judge would address two questions:

When judges do award maintenance, the awards average two to five years. Maintenance can, however, extend much longer than a few years. In medium length marriages (8 to 15 years) judges commonly award maintenance for one-half the length of the marriage. In longer marriages (15 years or more), particularly where one spouse has been a homemaker and out of the job market, courts may be more likely to award maintenance for an indefinite period.