EQUITABLE DISTRIBUTION

Either the husband or the wife can file for divorce.  Grounds for divorce are no longer necessary to obtain a divorce in New York.  Either party can allege that there has been an irretrievable breakdown in the marriage.  A divorce may be filed in New York as long as the parties have been living in New York for at least one year.

 An uncontested divorce just means that all of the issues (financial, child custody, child support, division of property) have been decided and all that needs to be done is file the appropriate paperwork to obtain a judgment of divorce.  In most cases, before filing the uncontested papers, you should also have a legally binding Stipulation of Settlement drafted and signed.

Child support is generally determined by a formula set forth in the law, called the Child Support Standards Act.  The formula requires the non-custodial spouse (the parent who does not have residential custody of the children) to pay a percentage of his/her income (less FICA withholdings) to the custodial spouse.  The percentage varies depending on the number of children: one child 17%, two children 25%, three children 29%.   If the parties' combined income exceeds a certain threshold, child support may or may not be awarded on the income above the threshold.  Also, the parties can voluntarily agree to an amount of child support different from that calculated by the formula. 

There is a legally mandated formula for calculating spousal support (alimony).  Generally speaking, the formula works such that the greater the difference between the parties’ income, the greater the amount of support that will be mandated.  The formula is gender neutral, so if the wife earns more than the husband, she may, in fact, be ordered to pay support to the husband.  There are fifteen (15) discretionary factors, however, which allow the judge to deviate, awarding an amount different than the formula would otherwise require.

New York is an “equitable distribution” state, meaning the judge has the discretion to divide the parties’ property fairly, not necessarily equally.  Most marital property, however, is divided equally in most situations.  The main exceptions are separate property that was either owned prior to the marriage or inherited during the marriage, and small businesses, whether started before or during the marriage.

You are entitled to a fair (not necessarily equal) division of the marital property; reasonable time with the children, whether as the custodial parent or non-custodial parent; child support for the custodial parent; and spousal maintenance for the lower earning spouse.  The most important point, however, is that there is more than one way to decide a case, so having the right representation is crucial. 

 A prenuptial agreement can cover more or less ground, depending on your needs.  The simplest prenuptial agreement just addresses one issue, such as keeping a premarital business separate in the event of a divorce.  But the prenuptial can cover how the bills will get paid, whether or not separate accounts will be kept, or what to do if the parties purchase real estate or make investments.

Child support can be enforced several different ways.  The payor's salary can be garnished to pay support as well as accumulated arrears (back-due support).  A court can enter a money judgment which can be enforced against a bank account or other assets in the payor's name.  A court can suspend the payor's driver's license or other professional license or certification.  Finally, under certain circumstances, a court can find the payor in contempt and sentence the payor to jail unless he pays a certain amount by a set date.