Divorce and Family Law Practice
Grounds | Legal Separation | Child Custody | Visitation/Parenting Time | Child Support | Equitable Distribution | Maintenance/Spousal Support | High Net Worth and Complex Asset Division | Pre/Post Nuptial Agreements | Marital Agreement | Paternity |
The grounds for divorce in New York State are as follows:
- Irretrievable Breakdown in Relationship
- Constructive Abandonment
- Actual Abandonment
- Legal Separation
- Cruel and Inhuman Treatment
It need not be shown that either party was at fault in order to obtain a divorce.
There may be certain reasons why parties want to enter into a legal separation (separate their finances and live apart), but not immediately get divorced. A legal separation addresses all of the same issues that are addressed in a divorce. However, the parties remain legally married. To further explore your different options and to see what is in your best interest, please contact our office to schedule a consultation.
Child Custody – Parenting Time
Child custody tends to be the most sensitive and emotionally charged area of family and matrimonial law. During a divorce proceeding, the physical and legal custody of a child, as well as parenting time, are usually addressed by the court, or resolved by way of settlement. However, Family Court can also determine issues of child custody and parenting time when there is no divorce proceeding. The court must determine the best interests of the child in determining which party should have custody and the amount of time that the child will spend with each parent.
The court will consider several factors before awarding custody. These factors may include:
- Current Circumstances: Is there a custody agreement in place that has been used by the parents?
- Siblings: Under most circumstances, the Courts will attempt to keep siblings together. However, there are situations where the best interests of the children require that they be separated.
- Stability of Environment: Where possible, it is preferable for the child to remain in the same environment, neighborhood, school, etc.
- Financial Circumstances of the Parent: The court will generally want to ensure that the child has a suitable home, adequate food, clothing, etc.
- Parental Fitness: The court will want to ensure that the custodial parent is stable and can provide a safe environment for the child. The court will be influenced by whether one parent suffers from an alcohol or drug problem or mental or emotional instability. A criminal history or a history of being physically abusive to the other parent or the children will likewise influence a custody determination.
- Preference of the Child: This has a greater impact as the child gets older.
- Relationship with and between the Parents: Is one parent alienating the child from the other? Does the child have a significantly closer relationship with one parent? Does that child have a strained relationship with one parent? Will the custodial parent foster a positive relationship between the child and the non-custodial parent?
- Types of Custody: In New York, there are two aspects of child custody: physical custody, and legal custody. Physical or residential custody relates to where the child resides, and legal custody relates to who has decision-making authority concerning the child. Both types of custody can either be sole, where the primary rights are given to one parent, or joint, where both parents share the rights.
- Child Abuse and Neglect: Charges of child abuse and neglect are often raised within the context of a custody dispute. Sometimes, such proceedings are initiated in Family Court when no divorce action is pending. Frequently these allegations are serious and have merit. On occasion, they are falsified by one spouse in an effort to gain an advantage in a custody proceeding. Our skilled New York attorneys can help you address these matters whether your spouse is harming your child, or whether unfounded allegations of abuse or neglect have been brought against you.
Visitation/Parenting Time refers to the time that the “non-custodial” parent spends with the child, which may include weekends, midweek time, summer and school vacations. During settlement discussions or divorce proceedings, the terms of child custody and visitation are addressed. It is always best if parents can work together to decide upon a custody and visitation arrangement that is mutually agreeable. If the parties cannot agree, the court will decide the terms of custody and visitation for them.
The parent that has primary physical custody is entitled to child support payments from the non-custodial parent. In New York, child support is based upon a percentage of gross income, after certain adjustments such as Social Security, Medicare, NYC tax and amounts paid pursuant to other support orders. These percentages are as follows: 17 for one child, 25 for two children, 29 for three children, 31 for four children and 35 for five or more children. However, the courts may, on occasion, adjust these percentages if it determines that they are unfair or inappropriate under the circumstances. Child support can be determined in the context of a divorce, or where there is no divorce.
Equitable Distribution/Division of Assets and Liabilities
Spouses considering divorce need to understand how property division will affect their various assets. New York is an equitable distribution state. This means that marital property will be divided “equitably”, which is not always the same as “equally”.
Property division and equitable distribution can be complex, especially in high net worth cases and those involving a great deal of varied property. It is not always immediately clear what assets are considered marital property, and therefore subject to division, and what assets are considered separate, and therefore not subject to division.
As a general rule, those assets acquired after the date of marriage and before the commencement of an action for divorce are considered marital assets. Assets acquired prior to marriage or after the commencement of a divorce or separation action are generally considered separate property and therefore not subject to division. However, there are exceptions to these rules involving inheritances, personal injury awards, lottery winnings, and an increase in the value of separate property. Our firm will need to review your particular situation in order to advise you on which assets should be considered separate and which assets should be considered marital.
Determining maintenance/spousal support (formerly referred to as alimony) can be a complicated process. Whether you are seeking to collect maintenance or may be required to pay it, you need a skilled matrimonial/family law attorney to protect your interests and financial future. Our experienced attorneys can explain the laws surrounding spousal support, inform a person of his/her legal options, challenge spousal support terms in court, and protect the person’s individual rights in and around Long Island and the New York metropolitan area.
Maintenance/spousal support is a long or short term payment of money from the monied spouse to the non-monied spouse resulting from a divorce or legal separation. Family Court can also award maintenance between spouses where there is no divorce or separation action, but where adequate support nonetheless becomes an issue. Maintenance is designed to cover the needs of the dependent spouse, including shelter, food, clothing, and medical expenses. When two people get married, they establish a standard of living. Upon a divorce, the law of New York endeavors to help the dependent spouse maintain that standard of living through the receipt of maintenance or spousal support. This type of support is designed to provide sufficient income for the dependent spouse to maintain the marital standard of living, if economically feasible, at least until the dependent spouse is able to become self-supporting.
The amount of maintenance is now determined by a formula that considers the incomes of both parties.
High Net Worth Divorce and Complex Asset Division
High net worth divorce cases can be highly contentious, as significant income, assets and sometimes business(es) and real estate holdings must be considered in distributing marital property and providing for spousal and/or child support. If you have a high income and /or complex equitable distribution case, have created substantial wealth during the marriage, and need to protect your interests, the attorneys at Rubin & Rosenblum, PLLC have the experience to assist you.
Pre/Post Nuptial Agreements
Prenuptial agreements are becoming essential for many couples in New York. With the great variety of family histories couples bring to a marriage, there is often a need to direct assets or personal property to a child from a prior marriage or to protect certain assets from becoming marital property. The lawyers at Rubin & Rosenblum, PLLC, can help you create a prenuptial agreement (prior to a marriage) or postnuptial agreement (after a marriage) that enables you to achieve your goals. Contact us to speak with a lawyer about a prenuptial or postnuptial agreement.
Do I Need a Prenuptial/Postnuptial Agreement?
Our experienced family law attorneys recognize that there are legitimate reasons to want to protect your assets acquired prior to marriage:
- Do you have children from a prior marriage?
- Do you have a family owned business?
- Do you have significant business interests?
- Do you have family heirlooms or family property that should be preserved solely for your heirs?
- Do you own property jointly with your parents?
We have the knowledge and skills necessary to evaluate, negotiate, and draft prenuptial agreements and post nuptial agreements that address your concerns and financial goals for the future.
Prenuptial agreements are very time sensitive. It is important to consider the agreement with sufficient time prior to the marriage. Otherwise, should the agreement ever come into effect, there may be a dispute that an individual was coerced. In addition to drafting these agreements, our lawyers also have the experience and trial skills to successfully litigate the agreement. Postnuptial agreements are executed anytime after a marriage.
For quality, informative and experienced assistance with a prenuptial agreement before marriage or a post nuptial agreement following marriage, contact our prenuptial agreement lawyers
If these issues were not addressed in a pre-nuptial agreement, they can also be addressed them after marriage, in what is known as a post-nuptial agreement. Our experienced attorneys can assist you in this regard.
A marital agreement is entered into after two people are married. It addresses how the parties’ finances should be handled. This can include how basic living expenses are paid during the marriage and how assets should be distributed. For more information, please contact our office to schedule a consultation.
If you are the parent of a child born out of wedlock, paternity must be established prior to the court being able to address issues of custody, visitation and child support. This process is generally handled in Family Court. Our attorneys can guide you through and assist you with filing the necessary petition, court appearances and hearings.
Same-Sex Couples and Families
It is now legal for gay and lesbian couples to marry in New York State and many other states as well. In the event of a divorce, gay and lesbian couples face the same legal issues as any other couple. However, they may also face issues that are exclusive to them. Our attorneys can provide gay and lesbian couples with family law services including:
- Domestic Partnership Agreements
- Termination of non-marital relationships
- Other civil union guidance
- Maintenance and support
Our firm can assist you in handling adoption legal matters including:
- Single individuals, married couples and same-sex partners looking to adopt
- Stepparents seeking to adopt their spouse’s child
- Relatives looking to adapt a child after the loss of a parent or parents
Orders of Protection
An Order of Protection may be essential to protect a victim of abuse, domestic violence, harassment or stalking. An Order of Protection is a court order, issued either by Family Court or a criminal court, which either prohibits one person from contacting or coming within a certain distance of the other person (“stay away” order) or, makes it illegal for a party to threaten, harass, stalk or otherwise encounter the other. If a party violates such an order, he or she faces serious legal consequences, including arrest and imprisonment. These orders can safeguard a party from domestic violence situations, including those that may be exacerbated by an ongoing divorce proceeding or Family Court matter.
A Temporary Order of Protection may be issued in order to offer a victim immediate protection. In these cases, a hearing is usually held at a later date to determine whether to keep the order in place.
Child Abuse and Neglect
Charges of child abuse and neglect are often raised within the context of a custody dispute. Sometimes, such proceedings are initiated in Family Court when no divorce action is pending. Frequently these allegations are serious and have merit. On occasion, they are falsified by one spouse in an effort to gain an advantage in a custody proceeding. Our skilled New York attorneys can help you address these matters whether your spouse is harming your child, or whether unfounded allegations of abuse or neglect have been brought against you.
After a child custody order or child support or Judgement of Divorce order has been entered, you may find yourself in a position where the other party is not complying with its terms. This noncompliance can create stress for you and/or your child, and, if it involves the non-payment of support, it can wreak havoc on your family’s finances. The Court can provide remedies in these situations. Enforcement of these orders is confidently handled by our firm in both Supreme Court and Family Court.
After a child custody order or child support order has been entered, it is subject to modification under certain circumstances. Generally, a change in circumstances must be demonstrated to the court in order to obtain a modification. These changes can include a change in the needs of the child (in a custody situation) or a job loss by a parent (in a child support situation.) Our firm provides clients with skilled representation in modification proceedings, in order to ensure that the custody order or child support order is structured in accordance with applicable law.