Frequently Asked Questions

New York Divorce & Family Law

1. Is New York a "no fault" state? Are there requirements to file for divorce?

New York is not a no fault state, which means that if you wish to file for divorce in New York you must have legal grounds that establish at least one spouse has committed some type of "marital fault." Grounds for divorce in New York include:

Cruel and inhumane treatment
Adultery
Abandonment for one year or longer
Incarceration for three years or longer

If you do not have grounds to file for divorce, but you no longer wish to be married, you can file for legal separation. After you've lived apart and have been separated for at least one year you will be eligible to file for divorce.

2. How is child custody determined?

When the parents of a child are able to agree on a custody arrangement on their own, the courts will almost always uphold their decision. However, if the parents cannot mutually agree on a child custody arrangement the courts will intervene. When a judge makes a decision in regards to child custody, there are several factors that he or she will take into consideration, some of which include:

Each parent's ability to provide a stable environment for the child
Each parent's current lifestyle
Each parent's mental and physical health
Each parent's income
If siblings are involved
The child's preference (if he or she is above a certain age)
The child's daily routine
The child's relationship to each parent
If either parent has a history of drug abuse, domestic violence or alcoholism

3. How is child support determined?

Child support is determined by multiplying the combined income of the parents (up to $80,000) by the appropriate child support percentage, which is determined by the amount of children who need support:

17% for one child
25% for two children
29% for three children
31% for four children
35% for five or more children

After the combined income has been multiplied by the appropriate percentage, the amount each parent should owe is determined by their share of the total income.

If the combined income is more than $80,000, there are several other factors the court can take into consideration, such as the financial resources of the parents; the special needs of the children; the standard of living the children would have enjoyed if their parents were still married; the non-monetary contributions of the parents towards the child; the educational needs of the parents; and a determination that the income of one parent is substantially less than the other parent's income.

4. How is spousal support/alimony determined?

Unlike child support, there is no set formula for determining alimony. When left up to the decision of a judge, there are several factors he or she will take into account, such as:

The duration of the marriage
The standard of living the couple shared during marriage
Each spouse's income
Each spouse's ability to earn an income
If one spouse stayed home from work to care for children
Each spouse's physical and mental health

5. Can I get a child support, spousal support or child custody order modified?

Yes. With the help of a skilled attorney, it can be very easy to modify a court order. Generally, all you need to do is prove that a substantial change in circumstances has occurred that warrants a modification.

6. What type of property can be divided and distributed during a divorce?

Unless specified otherwise in a prenuptial agreement or some other legal document, the only property that is eligible for division during divorce is marital property. This refers to any property, money, assets, or interest that was acquired or earned during the course of the marriage. However, property distribution can be complex, especially in high net worth divorce cases, so it's important to consult an experienced Long Island divorce lawyer who can make sure your property is being divided according to New York equitable distribution laws.

For more information about New York divorce and matrimonial law, please contact a Long Island divorce attorney at Samuelson Hause & Samuelson today!