Divorce and Matrimonial Law Overview
Divorce and Matrimonial Law Overview
By J. Douglas Barics
Suffolk and Nassau County Divorce Lawyer
Ending a marriage is hard enough. Navigating through the divorce itself in court is often harder. To make matters worse, different counties have different rules; a divorce in Suffolk or Nassau can be very different than a divorce in Queens or Manhattan.
The divorce itself may be counter-intuitive; many people often think that the reasons why you are getting divorced carries a lot of weight. That used to be the case before 1966, but from that year to 2010 the grounds for divorce expanded, and in 2010 they were abolished altogether when New York adopted no fault divorce. Ironically, New York once led the way in the liberalizing of matrimonial law, but was the final state to adopt no fault.
To understand the practical effect of no fault, the distinction between the “cause of action” and the “ancillary relief” must be understood. The cause of action is simply whether or not the court will dissolve the marriage. Prior to no fault divorce, if the divorce was denied, the marriage would remain and the remaining issues would largely be moot. Prior to 1980, the financial issues were far simpler as well, the only financial relief the courts could grant was alimony, and only wives were entitled to it, regardless of marital fault.
Starting with the enactment of the equitable distribution law in 1980, the financial aspects of a divorce grew far more complex, and today, the issue of the divorce itself is trivial due to no fault, while significant resources and time are spent on sorting out the finances.
That means the ancillary issues are the heart of modern matrimonial law.
What is an Ancillary Issue?
An ancillary issue is an issue that cannot stand as an independent case in Supreme Court; by definition it is part of another case. Thus, there is no separate cause of action for equitable distribution; marital property can only be awarded in conjunction with a matrimonial action. However, many ancillary issues are authorized by statute to be prosecuted as a special proceeding or in Family Court.
What is a Matrimonial Action?
A matrimonial action is specifically defined by Domestic Relations Law §236B, and includes a divorce and an annulment, as well as some other specific actions, such as declaring a marriage void, a legal separation, obtaining an official recognition or non-recognition of a foreign divorce, and subject to certain limitations, a special proceeding to obtain equitable distribution of the divorce was granted outside of New York
What are the Residency Requirements?
Four of the listed matrimonial actions have residency requirements based upon New York’s policy that there must be sufficient ties to the state before the courts will grant any relief. They are (a) a divorce, (b) an annulment, (c) a separation, and (d) the declaration of a void marriage.
What are the Grounds for Divorce?
There are seven grounds for a divorce in New York. Six are fault based and the seventh is no fault. Using a fault based ground is nearly unheard of, as it does not affect the ancillary issues, is far more expensive, and even if you lose on fault your spouse can still obtain a no fault divorce.
The grounds are as follows:
- Cruel and Inhuman Treatment
- Abandonment
- Imprisonment for three or more years
- Adultery
- Living apart under a judicial separation for one year or more
- Living apart under a separation agreement for one year or more
- The irretrievable breakdown of the marriage for six months (no fault)
Once grounds are resolved, the court will then turn to the ancillary issues.
What are the Ancillary Issues?
The ancillary issues in a divorce action in New York are as follows:
- Custody & Parenting Time
- Child Support
- Maintenance
- Equitable Distribution of the Marital Property
- Counsel Fees
- Expert Fees
- Exclusive Occupancy of the Marital Home
This list is not exhaustive. Note that custody, child support and maintenance may be maintained as separate proceedings independent of a divorce.
How are the Ancillary Issues Determined?
Every issue in a divorce will be resolved. Most divorces will end in stipulations of settlement on all or some of the ancillary issues. For those issues which cannot be resolved, there will be a trial, and the court will make a determination on all unresolved issues.
What is a Marital Agreement?
A marital agreement the broad term that includes stipulation of settlements. When you settle your divorce, the terms are set by you through negotiations, as opposed to letting a judge decide. In addition, a stipulation ends the case, as there no appeal is allowed following a stipulation.
What is a Matrimonial Appeal?
A matrimonial appeal is an appeal from your divorce judgment on any or all issues that was decided by the judge. Its not a second trial. It is where you ask an appeals court to review the trial judge’s decision and request that it be changed or reversed due to a mistake by the trial judge.
Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation
If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matrimonial action. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.
Divorce and Matrimonial
Divorce and Matrimonial Law Overview
Divorce
Annulments
Void Marriages
Matrimonial Appeals
Equitable Distribution
Maintenance
Child Support
Custody
Counsel Fees
Expert Fees
Exclusive Occupancy
Pendente Lite Motions
Same Sex Divorce
Modification of Child Support
Modification of Maintenance
High Net Worth Divorces
Marital Agreements
Complex Challenges
Appeals
Constructive Trusts
Partitions
Foreclosure Defense
Family Court
Divorce & Annulment
Facing a divorce or annulment will be one of the most stressful times in your life. Not only are you losing your spouse, but this is often the first time many people will have to hire a lawyer or navigate the court system. Having a better understanding of what to expect will help keep your life manageable.
A good way to conceptualize a divorce is to view it as three divorces. The legal divorce, the financial divorce, and the emotional divorce.
To those facing a dissolution of marriage for the first time, wrongdoing of a spouse is rarely the focus. Instead, the focus of the courts is sorting out finances and children. However, understanding what is required to get a divorce or an annulment is the first step.
When children are involved, special problems are presented as having meaningful access to your children's lives is no longer in your control.
While there is much talk about spending quality time with your children, this approach ignores the reality of simply living with them; they are around when you are simply functioning day to day.
However, children are remarkably resilient, and when a divorce is the only option, children and adults will adjust to the new reality. How well children adjust does largely depend on how well the adults adjust.
If any part of a divorce cries out for settling, it is custody, as it lets both parents reach a mutual agreement they can both live with instead of letting an outsider dictate their involvement with their children.
Child support is a percentage of income based on the number of children involved. For one child, it is 17%, for two, 25%, for three, 29%, for four 31% and for five or more no less than 35%.
There are few deductions to income in determining child support. Social Security, FICA, Medicaid, and local taxes are the bulk of allowable deductions.
Child support consists of both the basic support, plus add ons consisting of day care and unreimbursed medical expenses.
Child support is payable up to the child reaching the age of 21.
Since 1980, the term Maintenance has replaced the term Alimony. Maintenance is the payment of money by one spouse or former spouse to another, over time, pursuant to a court order or matrimonial agreement.
Since 2016, post divorce maintenance uses a formula to determine the amount. Prior to 2016, it was within the Court's discretion to determine how much.
The maintenance formula calculates maintenance in two ways, and the lower amount is considered the correct figure. There is also a non binding guideline on the duration of maintenance.
Most maintenance today is designed to allow a spouse who became financially dependent on the other spouse enough time to regain financial independence. When that is not possible due to age or health, lifetime maintenance can be awarded.
Equitable distribution is the legal model under which marital property is divided in New York. Two elements define equitable distribution. First, is that he property rights only vest upon the dissolution of the marriage. Second, is the court has broad discretionary powers under equity to distribute marital property in a way that is deemed fair and appropriate under the circumstances, provided the Court follows the statutory factors.
Equitable distribution classifies property as either separate or marital. Separate property remains as is. Only marital property is subject to division.
Exclusive occupancy is the authorization to allow one party exclusive use and possession of a home, usually the marital property, for a set period of time before it is sold.
It is most commonly used when there are insufficient assets to allow one spouse to buy out the other spouses interest in the home, and there is a sufficient reason not to sell the home immediately. The vast majority of time the reason is due to the children's interest to continue to reside in their home.
The length of time of exclusive occupancy based on the children's age is also a factor. Exclusive occupancy is more likely to be granted to allow a teenager to complete school without being disrupted, and less likely when a two year old child is involved.
Exclusive occupancy is best viewed as one of many options available to the parties and the court to dispose of property in a way that tries to be fair to everyone.
If you're concerned that you cannot obtain a lawyer because your spouse has control of the finances or has access to significantly more money than you do, rest a little easier.
The Courts have the authority to award counsel fees to the spouse with less financial resources. Counsel fees can be awarded very early on in the case, midway through the case, and at its conclusion.
One of the key concepts in awarding counsel fees is to create a level playing field between spouses.
Sometimes an expert is needed in a divorce. One of the most common experts is a forensic accountant who can evaluate the true worth of a small business and its actual income.
Experts are critical, as their opinion is what is used to establish value. Without value, the court cannot distribute marital assets to the non titled spouse.
Expert fees are awarded when they are necessary to obtain the information needed and there's a large disparity in financial resources between the spouses.
An award of expert fees when necessary is critical.
Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.
Temporary child support and temporary spousal maintenance are two common requests made in pendente lite motions. Parenting time, counsel fees, expert fees and temporary exclusive occupancy of the marital home also warrant early court intervention.
Knowing what preliminary options are available and how to obtain them are a key part in any divorce. Even if you don't need a pendente lite motion, simply knowing its there can help prevent people from making agreements out of desperation.
High net worth divorces include by definition, additional factors that must be taken into consideration. Very often, high net worth individuals own one or more businesses which can be impacted by a divorce. This is especially true when these businesses are owned by someone other than either spouse. Wealthy individuals often leverage their assets as a resource multiplier, and a large debt in a high net worth case can mean something very different than a large debt in a middle class divorce.
High net worth divorces mean more than simply more assets to distribute. Very often, they have different characteristics that cannot be ignored.
Marital agreements are simple contractual agreements within a matrimonial framework. The most common trap people fall into is how they approach reaching an agreement, viewing it as simply stating each person's obligations. While this is necessary, it is not sufficient.
Every agreement needs a second aspect; the consequences of not following the obligations set forth in the agreement. These consequences can either be express terms or legal remedies, but they must be there at some level.
Matrimonial appeals present unique challenges to appellate litigation. Many appeals involve misapplication of the law, which is the strongest argument to make in an appeal. But when questions of law are not an issue and the appeal centers around questions of discretion, they become far more challenging as Appellate Courts defer greatly to the trial court's discretion. When discretion is involved, one key aspect is finding relevant case law to show the trial court figures are outside the range of the doctrine of "sound discretion." While important, this is not the only theory to challenge a trial court's disposition on an appeal.
Modification of Child Support
Orders of child support may be modified based on a decrease of income, an increase of income, a change of circumstances, if the existing order is not sufficient to meet the needs of the children, or if three years have passed since the last modification. In addition, COLA adjustments to child support orders can also be requested.
Obtaining a new order, or defending against a requested increase, will depend on whether the original order was an agreement or decided after a hearing, the date of the agreement, and whether or not the various legal standards required to modify a support order have been met.
Modification of Maintenance
An order of spousal support is never permanent, a final order is always subject to a later modification. The Courts retain the authority to modify maintenance awards, meaning that they can be modified even if one side does not agree. The issue here is what standard is needed to request a modification or even termination of maintenance, and what proof is needed for the Court to grant this request.
Modifications of spousal support are not easy and never guaranteed, and understanding what steps are required is the first step in deciding whether to pursue a modification.
Complex Challenges
Complex issues in divorces is a separate issue from high net worth cases. Many times people are faced with complex legal problems that do not have straightforward answers. These complex issues arise out of procedural errors that spill over into how the court addresses the merits.
Often, there are solutions that involve combining procedural rules to fix the prior mistakes. If you're faced with a situation that appears like you are not able to present your case due to technical reasons, you need an attorney who is well versed in the procedural solutions to address these complex challenges.