If you are reading this, it is likely that you believe your marriage cannot be saved. Often the spouses have already attempted marriage counseling, considered other ways of solving their problems, but at least one of the spouses has come to the conclusion that the marriage is over.
Divorce, unless undertaken by complete agreement of both spouses, can and usually is an incredibly emotional and often down-right draining experience. In some cases it can become totally debilitating at times for either or both participants.
Yet, during the often exacting divorce process, you will be called upon to make numerous major life decisions that will likely impact the rest of your life. This is arguably the single best reason to hire an attorney. Our overarching objective is to minimize your ordeal and maximize your custody, visitation, alimony, child support and equitable distribution objectives.
Our goal is to do a great deal more than just give you the necessary legal advice to get you the best possible outcome for your financial and/or child related issues. We will also try our best to give you the kind of practical guidance you likely need to navigate the emotional roller coaster you are about to delve into in order to emerge from this process as unscathed as possible.
Grounds for Divorce in New York
In New York, pursuant to DRL 170, a divorce judgment can be obtained based on one of seven different grounds:
(1) Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper live with the defendant.
Under the cases known as Hessen v. Hessen and Brady v. Brady, the longer the marriage, the harder it is to obtain a divorce under this ground. Differently stated, the longer the marriage, the more serious the conduct complained of needs to be under this particular ground, for a divorce judgment to issue.
(2) Abandonment by the defendant for one year or more.
Abandonment, in this context, requires proof of four elements:
(a) voluntary separation of one spouse from the other
(b) an intent not to resume cohabitation
(c) lack of consent of the other spouse
(d) no justification
In cases where no actual abandonment exists, the court may consider granting a divorce on a theory of “constructive” abandonment:
(a) One spouse locks the other spouse out of the marital home
(b) The actions of one spouse makes it impossible to live together
(c) Lack of sexual relations. Diemer v. Diemer
(3) Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant.
(4) The commission of an act of adultery, … defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant.
Adultery means sexual intercourse. Anything less will not be sufficient to sustain a judgment of divorce. Adultery can be proven by direct or circumstantial evidence. However, a spouse’s admission to adultery is not sufficient and a spouse may not testify that his or her spouse committed adultery. CPLR 4502(a).
There are four affirmative defenses to adultery which are listed in DRL 171. These must be raised in the pleadings or they will be deemed waived.
(5) Living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree.
A judgment of separation is the result of an action for a separation. Known as a conversion divorce, a filing under this ground aims to convert the judgment of separation into a judgment of divorce.
(6) Living separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.
Also known as a conversion divorce, here the Plaintiff must meet two elements. First, it must be shown that there is a valid separation agreement, and second, that the parties have substantially complied with its terms.
A valid separation agreement must be executed in the form which is required for a deed to be recorded, which means the agreement must be signed and acknowledged by the parties; merely notarizing the agreement is insufficient. In Matisoff, the Court of Appeals held that an unacknowledged marital agreement is unenforceable, despite hearing testimony that both parties signed the agreement.
Living Apart Pursuant to a separation agreement for one year or more is one way to obtain a divorce in New York without either party being at fault.
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.
Since 2007, New York joined the ranks of no-fault divorce states, when the legislature adopted the “irreconcilable break-down of the marriage” ground for divorce. What this means to you is that frankly, to the court it just does not matter why you are seeking a divorce. Fault, that is who did what to whom is not going to be a factor in your divorce unless there is a justifiable reason for it. Such reasons may include, by way of example, certain types of custody disputes, child neglect or abuse allegations, or a spouse’s spending marital assets on an adulterous affair. The former may impact child custody and time-sharing, and the latter may impact the equitable distribution of your financial assets and liabilities.
Thus, for any divorce action filed after October 12, 2010, grounds may be true no fault under this section. It allows a divorce to be granted without a finding that either spouse is at fault. Instead, the party seeking the divorce must simply allege that the marriage has irretrievably broken down for six months or more.
The Initial Stages:
Many divorces are settled before court papers are ever filed. They can be resolved by both parties working together or with the help of a single neutral mediator (preferably a qualified attorney). Alternatively, the parties’ attorneys negotiate a settlement and reduce it to writing in a comprehensive “property settlement agreement”.
Assuming that pre-filing settlement isn’t possible, the first step in your divorce is to prepare the initial papers. If you are the spouse filing for divorce, that will include a Complaint for Divorce and several other related, obligatory documents.
After being served with a complaint, the defendant spouse in any divorce action has a limited number of days to respond. The response can be by an Answer or an Answer with Counterclaims.
After all initial pleadings have been served and filed, the next step requires automatic financial disclosure. The parties, either separately or working in conjunction with one another, must produce all of their financial documents. You will receive a document checklist outlining each and every item covered by this rule. All of the assets and liabilities should be determined at the time you are filling out your financial disclosures, and copies of the actual statements, accounts and records should be secured in advance.
Child Custody in New York
There are two recognized types of custody: (i) legal custody and (ii) residential or physical custody. Legal custody refers to a parent’s right and responsibility to make decisions concerning the health, welfare and education of a minor child, such as, for example, what schools the child attends, what religion the child follows, when the child may begin driving a car, etc.
Residential or physical custody simply refers to the place of a child’s primary residence. In New York the age of majority for purposes of custody is 18. (Both parents remain obligated in New York to support their children, however, until the age of 21.)
The determination of custody is based on the “best interests of the child.” New York courts consider a variety of factors in determining what is in “the best interest of the child,” including:
• The child’s age, sex, mental and physical health
• The parent’s mental and physical health
• The parent’s lifestyle
• Any history of child abuse
• The emotional bond between the parent and child
• The parent’s ability to provide for the child
• The child’s regular routine
• The quality of the child’s education
• The child’s preference once the child reaches an appropriate age (usually over 12)
Child Visitation in New York
A concept related to custody is visitation, otherwise known as parenting time or parental access. Under New York law, a parent who does not have primary custody of a child will generally be allowed reasonable visitation unless a court determines that visitation would in some way endanger the child or adversely affect the child’s well being.
The Genesis of New York’s Equitable Distribution Law
Prior to 1980, New York was a common law property state. At that time, “marital property”, as it is now known, simply did not exist. Instead, in a divorce action property and assets were simply awarded to the spouse who happened to have held title to those assets. Thus, prior to the enactment of the new law, New York was a “title” state and property in the name of a spouse (the titled spouse) remained that spouse’s property after the marriage was dissolved. The non-titled spouse was rarely awarded any part of the property in the other party’s name upon the dissolution of marriage. This was true even though the property was acquired during the marriage. There were exceptions in cases of fraud but invariably fraud was very difficult to prove. One can readily see that prior to the equitable distribution law, harsh results could ensue upon the dissolution of a marriage which a court was powerless to correct, absent fraud.
The only potential remedy available to a non-titled wife was to receive alimony. Significantly, due to the arbitrary gender preference built in the old law and its application, husbands could not receive alimony. Moreover, if a husband could prove marital fault rested with the wife, she would be precluded from receiving any alimony.
Effective July 19, 1980, New York joined the ranks of many other states and became an equitable distribution state. The new law, known as the “Equitable Distribution Law”, is actually an amendment to Section 236 of New York’s Domestic Relations Law (DRL). It is significant that much of the new law was patterned after the Equitable Distribution Law which had already been enacted many years earlier, across the Hudson, in New Jersey.
The new equitable distribution law (“EDL”), dramatically changed the old state of affairs. One of those changes was to gender-neutralize those statutes within the Domestic Relations Law (DRL) and the Family Court Act (FCA) and those statutes outside of the Domestic Relation Law and the Family Court Act that created certain imposed obligations on one party to a marriage over the other party or imposed obligations on only one of the parties. The words “wife” and “husband” were replaced by “parent”.
General Approach to Equitable Distribution
The court generally employs a three pronged approach to equitable distribution. First, it decides what is marital property and what is separate property. Next, the Court decides what is the value of all marital property to be distributed between the parties. Some assets are valued easily (bank accounts, stocks and cash). Other assets will require an expert’s opinion to set a value, such as real estate, business interests, or a professional license. Finally, the Court will apply the relevant statutory factors in deciding how to distribute the valued marital assets fairly among the spouses.
Separate property is defined under DRL 236 B(1)(d) so as to include the following categories of assets:
Marital property on the other hand is defined as any property which is not within the definition of separate property, and is any property which is acquired by either party during the marriage, regardless of who actually holds title to the asset. For example, real estate, bank accounts, pensions, stocks, automobiles, contract rights, businesses, professional licenses, seats on the stock exchange, and precious metals are all marital property subject to equitable distribution.
Statutory Factors Under the DRL
At the heart of equitable distribution law lies the determination as to who receives what. At present, under DRL Sec. 236 B(5)(d), New York courts apply definitive statutory factors to decide what each of the divorcing spouses will receive at their divorce by way of equitable distribution. It is noteworthy that the court need not consider each factor and there is no single factor which is dispositive of the distribution of marital property.
Factor 1: The income of the parties at the time of the marriage and at the time of the commencement of the action pursuant to DRL 236 B(5)(d)(1). A change in the relative incomes of each party will be a factor considered by the court under DRL 236B(5)(d)(1). While each case is subject to different considerations and equities, a spouse whose income has grown less than their spouses, or whose income has decreased through no fault of his or her own, may be favored in receiving a larger share of the marital assets, so as to “level the playing field”.
Factor 2: The duration of the marriage and the age and health of both parties pursuant to DRL 236 B(5)(d)(2). In regard to the duration of marriages, cases tend to fall in three distinct categories: short term marriage cases, longer term marriage cases and long term marriage cases. In very short marriage cases, a court may tend to “unwind” the marital union in equitable distribution and attempt to place each party back in the position he or she would have been had there been no marriage not. In longer term marriage cases however, courts will divide all marital property equitably, meaning fairly, considering all circumstances implicated in the case. Finally, in long term marriages, courts gravitate to a more equal division of marital assets.
Obviously, the age and health of each spouse will be a factor, as a spouse who is unable to work due to health reasons or loss be unable to secure a profession due to age may result in a greater award of marital property. Any maintenance award must be taken into account as well.
Factor 3: The need of a custodial parent to occupy or own the marital residence and/or household items pursuant to DRL 236 B(5)(d)(3). If there are sufficient assets to offset the home, the court may award ownership of the marital home to the custodial parent. If no such additional assets exist, the court may award the custodial parent the exclusive right to occupy and use the marital home for a specific period of time under DRL 234 and DRL 236 B(5)(f), often until the youngest child completes high school or reaches majority.
Factor 4: The loss of inheritance and pension rights pursuant to DRL 236 B(5)(d)(4). A spouse has various inheritance rights which are lost following a divorce. The loss of these rights is a factor under DRL 236B(5)(d)(4), but is rarely used by the courts. This factor should still be considered, especially if there is significant amount of separate property that a surviving spouse may have otherwise inherited.
Factor 5: An award of maintenance pursuant to DRL 236 B(5)(d)(5). An award of maintenance made under DRL 236 B(6) will be a factor considered by the court. In some cases, an award of maintenance may work against receiving a greater share of the marital property than what would have otherwise been awarded. An award of maintenance may also affect which assets are distributed, as an award of maintenance decreases the need for income producing property.
Factor 6: Any equitable claim or interest or contribution make by the non titled party as services as a spouse, parent, wage earner, or home maker, pursuant to DRL 236 B(5)(d)(6). Effects on the career of the other spouse are considered as well. This statutory factor allows the court to consider the contributions of the non titled party in determining that spouse’s share of the martial property. Thus under DRL 236B(5)(d)(6), if one spouse acquires marital property in his or her name alone, the other spouse may show contribution towards that property by providing services as a spouse, taking care of the parties children, working, or being a home maker.
Factor 7: The liquid or non liquid character of the marital property pursuant to DRL 236 B(5)(d)(7). In this regard, it is important to determine how easily marital property may be converted to cash is a factor. Inherently liquid assets (cash, bank accounts, stocks, precious metals) are often sought by both parties. Liquid assets may simply be divided, while non liquid assets may give rise to a distributive award, or warrant an award of maintenance instead.
Factor 8: Probable future financial circumstances of each party pursuant to DRL 236 B(5)(d)(8). A spouse with greater need for income may be awarded income producing marital assets as his or her equitable share.
Factor 9: The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party. DRL 236 B(5)(d)(9) The difficulty or impossibility in evaluating an asset can affect how other marital assets are divided. Some assets cannot be divided or it would make little sense to actually divide them, even if it were possible. For example, dividing a small business between divorcing spouses often makes little sense. It is neither practical nor possible in most cases to have both parties post-divorce own a single business. If the parties could not make the marriage enterprise work, it is unlikely that they could continue working together after divorce for the benefit of a business. In those cases, DRL 236B(5)(d)(9) allows the court to keep an asset, such as a business intact, give it to one of the parties only, and use other assets or other financial consideration to compensate the remaining spouse for his or her share in the value of the asset which is not shared. In the alternative, a distributive award of cash made pursuant to DRL 236 B(5)(e) to achieve balance. The end result may be that that each spouse will ultimately receive the same dollar amount, with some assets retained exclusively by one of the spouses.
Factor 10: Tax consequences to each party pursuant to DRL 236 B(5)(d)(10). The court may consider the tax impacts to the parties under DRL 236B(5)(d)(10) when deciding how to distribute marital assets. Expert testimony will generally be required to prove such impact to the court. In theory, the court will try to minimize the taxes paid by each party, thereby increasing the size of the after tax marital estate.
Factor 11: Wasteful dissipation by either spouse pursuant to DRL 236 B(5)(d)(11). Wasteful dissipation of marital assets by a spouse may be offset by awarding the other spouse a greater share of the remaining assets. What constitutes wasteful dissipation under DRL 236B(5)(d)(11) is a question of fact for the court to decide.
Factor 12: Any transfer below fair market value made in contemplation of a matrimonial action pursuant to DRL 236 B(5)(d)(12). Transferring assets to a third party for less than those assets are worth invites the court’s scrutiny over the transaction. If the court determines that the transfer was undertaken to deprive a divorce spouse from the value of marital assets, the transferring party is subject to severe sanctions against. The court can, in such cases, award a higher percentage of the remaining assets to the other spouse. In addition, the victimized spouse may file a separate action to undo the transfer. Such separate action sounding in “fraudulent conveyance”, can be joined together with the divorce action.
Factor 13: Any other factor the court deems relevant pursuant to DRL 236 B(5)(d)(13). Under DRL 236B(5)(d)(13), the court may consider any other factor in its discretion. Marital fault other than dissipation of marital assets plays no role in equitable distribution absent the most egregious of circumstances.
Pre-Trial Discovery of marital and separate property
Under DRL 236 B (4), mandatory financial disclosure is required for all income and assets without regard to whether these are marital or separate. Disclosure is both mandatory (net worth statements) and permissive (notices of discovery and inspection, interrogatories, subpoenas, and depositions). Each case should be carefully strategized to ensure complete discovery from the spouses and third parties alike. Only on a “full record” can fairness and equity be decided in an equitable distribution case.
New York Maintenance and Support
It is critical to position a maintenance case properly from the inception of the process, and to marshal early on all facts and proofs conducive to meeting the client’s objectives.
In New York, maintenance can be a significant financial component of any divorce case. State law recognizes a variety of potential support mechanisms designed to ensure the maintenance of the other spouse in appropriate cases. These generally include pendente lite support awards designed to maintain the status quo during the pendency of the divorce action as well as permanent maintenance awards once the divorce is granted.
Maintenance in New York is a periodic payment made to a spouse by the other spouse for his or her support. If it is made during an action for divorce, it is called temporary maintenance, and if it is made after the divorce, it is called permanent maintenance, even if it is limited in duration. In all cases, maintenance will terminate upon death or remarriage, unless the parties agree otherwise in a written settlement agreement.
Since 1980, in appropriate cases courts have awarded rehabilitative maintenance, designed to enable the dependant spouse to become financially independent. The emphasis on rehabilitation means that awards are generally limited to a number of years starting on the date the divorce judgment is issued.
Typically, Courts grant maintenance to the lower-earning spouse only in cases where there is a substantial difference between the incomes of the parties.
Temporary Maintenance Awards
A relatively recent change in New York law requires application of a formula to determine the amount that should be paid for temporary maintenance. In addition to setting the amount of temporary maintenance, the law establishes a threshold for eligibility. For incomes less than $524,000, if the amount of the payee’s income is more than 40% of the sum of both parties’ income, then the guideline amount of temporary maintenance is “zero” dollars.
The new temporary maintenance law creates a presumptively correct amount of temporary maintenance derived by mathematical formula. Of course, temporary maintenance ends when the judgment of divorce is granted, so it ultimately is of limited consequence to the support needs of the dependent spouse in the long term. Moreover, the statutory presumption can be defeated in any given case where one or more statutory factors is applicable because the court finds it to be “unjust or inappropriate.” These factors, if applied appropriately, could cause the presumptively correct amount to be reduced or increased. Here the aid of an experienced attorney will be invaluable.
Overall, all maintenance issues should be tackled early in the litigation to maximize the chances for achieving the client’s objectives. In appropriate cases, attorneys will retain employability experts who, for example, may provide testimony regarding imputation of income to deliberately underemployed or unemployed spouses, who in reality should not be seeking maintenance, but do so nevertheless. Such experts may also prove instrumental in convincing the court that the paying spouse should be earning substantially higher wages than he or she claims to be earning, and that therefore his or her support responsibility should be greater.