A divorce legally ends the marital relationship. Under the law, a person can seek a divorce on any of the following grounds:
In New York, most divorces are awarded on “no fault” grounds – in particular on a claim that the marriage has “irretrievably” broken down. Typically, however, the court will grant a divorce only after all the other issues (e.g., custody, child support, equitable distribution, and spousal maintenance) are agreed upon or determined by a court after a trial.
Similar to all other states, New York has a law that determines how property is divided in a divorce. In New York, the method is called “equitable distribution.” With four exceptions, property acquired during the marriage (called “marital property”) is subject to division via equitable distribution.
Property that is not deemed marital and is therefore not subject to equitable distribution (called “separate property”) includes property or funds:
The equitable distribution analysis can be complicated under the law and does not automatically mandate equal division.
An award of maintenance (historically called “alimony”) is not mandated but may be awarded in the discretion of the court. In determining the amount and length of a maintenance award, the governing statute requires consideration of a range of different factors including the following:
When determining a question of the custody of a minor child (under the age of 18), two components must be considered; how to allocate between the parents: the time to be spent with the child (“physical custody”), and the decision-making authority concerning the child (“legal custody”).
Custody can either be determined by agreement or by a court. Custody issues are resolved in New York’s Supreme Court on a contested basis in divorce cases but can also be determined in Family Court, when, for example, there is a custody dispute between unwed parties.
Custody issues arise whenever someone claims custody and include disputes over the relocation of a child to a new locale and the modification and enforcement of existing custody orders.
When a parent abducts a child to another state, special rules under the Uniform Child Custody Jurisdiction Enforcement Act govern which state has authority to determine the custody of that child.
Typically, New York courts retain the authority to make an initial custody order and/or to enforce or modify such an order, if the child lived in New York with a parent for at least six months immediately before the commencement of the proceeding seeking such relief.
The United States is a party to the Hague Child Abduction Convention (called the “Hague Convention”), which may apply when a parent abducts a child transnationally. If a child is abducted to the United States; the country from which the abduction occurred is also signatory to the Hague Convention; and the child is located in New York, a state or federal court in New York can order the child’s return.
In New York, child support is generally payable until the child reaches the age of 21, pursuant to a law known as the Child Support Standards Act.
Child support has two components: basic child support, meaning fixed payments made on a regular basis; and additional contributions for “add-on” expenses. Add-on expenses include, for example, the extra costs associated with necessary childcare and unreimbursed medical expenses
Child support is required to be agreed upon or determined by the court in a divorce action. However, child support is sometimes determined separately in Family Court, when, for example, the parties were never married.
The issue of child support includes disputes over the modification and enforcement of existing child support orders and the payment of private school and/or college education expenses.
Under current law, courts in New York have authority to determine both “paternity” and “maternity.” Paternity proceedings concern disputed questions concerning the identity of a child’s father. With respect to the identity of a child’s mother, reproductive technologies, including in vitro fertilization, egg donation, and surrogacy, have led to contested issues concerning who may be declared to be a child’s mother.
Declarations of paternity and maternity have enormous consequences both as to the parent and the child and can serve as a basis to claim custody and/or to seek child support.
A prenuptial (or antenuptial) agreement is a binding contract that couples enter into before their marriage. It settles issues that otherwise would have to be resolved, if the parties were ever to divorce. These issues typically include ownership and the division of property; maintenance that would be payable to a spouse; and inheritance rights.
Prenuptial agreements do not address the custody of, and child support to be paid for, unborn children.
A separation (or marital settlement) agreement is a binding contract that the parties enter into, when they have concluded that their marriage is at an end. It settles issues that otherwise would have to be resolved by a court in a divorce action. These issues include: the division of property; maintenance payable to a spouse; inheritance rights; the custody of minor children; parental access; child support; and the payment of additional expenses related to raising a child such as private school and college education expenses.
New York law and public policy favor resolution of these issues between the parties themselves, which avoids the pain and expense of protracted court proceedings.
In New York, a person who is a victim of domestic violence can pursue criminal charges that are prosecuted by the district attorney. Alternatively and/or simultaneously, they can obtain an order of protection in a civil Family Court proceeding.
In response to domestic violence, orders of protection can be obtained in Family Court against:
Orders of protection can be for up to five years’ duration. They can include a wide variety of directives, including: that the offending party be removed from the home and/or must stay away from the party on whose behalf the order of protection was issued; the offending party surrender firearms in their possession; and that the offending party be placed under supervision by the Department of Probation.
The issue of domestic violence includes violations of orders of protection.
Child protective investigations are conducted by the NYC Administration for Children’s Services or county child protective services outside of New York City. They occur because a report alleging that a child is somehow at risk is made to the Statewide Central Register of Child Abuse and Maltreatment, and an investigation is needed to assess the situation. The defense of such investigations includes assembling all the relevant information that should be considered in making a correct assessment of the allegations and providing the information to the investigator, identifying and hiring necessary experts to assist with the defense of the investigation, guiding the parent though, and otherwise representing the parent in, the administrative process.
If circumstances warrant, the investigative agency is required to file a child protective proceeding in the Family Court. Defending such court proceedings not only involves a similar process to defending a child protective investigation (including, for example, ensuring that all relevant evidence is provided to the court) but also involves representing the person who is the subject of the investigation in the court proceeding.
Estate planning is the process of organizing your assets, writing a will and related documents to effectuate the transfer of your assets at the time of death.
Estate litigation concerns disputes after death over the validity of a will or trust, the distribution of assets to heirs, who is to be appointed to act as executor or administrator of the estate, and the appointment of guardians for minor children.
Lesbian, gay, bisexual, transgender, queer, intersex, asexual + persons have the same variations in their relationships and the same family law issues as heterosexuals, including all of the foregoing, from prenuptial agreements, to custody issues, to domestic violence, to estate planning, and so on.