Issues of Family Law in New York

GROUNDS FOR DIVORCE

Divorce in New York is governed by Section 170 of the Domestic Relations Law. There are six grounds for divorce: adultery, one year abandonment, three years imprisonment, cruel and inhuman treatment, living separate and apart pursuant to a valid decree of separation and living separate and apart pursuant to a valid separation agreement.

As a result of the above, New York is primarily a "fault" state; that is, absent a decree of separation or a voluntary agreement, the party seeking the divorce must be able to prove the other's "fault" pursuant to one of the four fault grounds to enable that party to obtain a decree of divorce.

Adultery involves sexual relations of one party with another person without the consent or forgiveness of the other party. In the event both parties are committing adultery, then neither is entitled to a divorce on this ground in New York State.

Three years imprisonment involves the confinement of the Defendant in a prison for a period of three or more consecutive years after the parties' marriage. Interesting questions exist as to whether or not work release programs or similar innovative methods of punishment are considered confinement in prison for the purposes of a divorce.

An abandonment for one year generally involves one party leaving or walking out on the other and failing to return or provide assistance or support. A voluntary separation of the parties (without the entering into of a formal separation agreement) is not an abandonment under the terms of the statute. Constructive abandonment is where one party refuses to have sexual relations with the other for at least one year although requested to do so in a reasonable manner by the other party.

Cruel and inhuman treatment is such conduct that so endangers the physical or mental well being of the other party as renders it unsafe or improper for that party to cohabit with the other. This is more extensive than incompatibility or irreconcilable differences. In a truly contested case in a long-term marriage, the level of proof needs to be quite high. The term "mental cruelty" would fall in this category. In those situations, expert testimony such as that of a psychiatrist, psychologist, physician or certified mental health professional is usually quite helpful and, in many cases, a necessity.

Living separate and apart for more than one year pursuant to a valid decree of separation, although one of the six grounds, has rarely been used, since the grounds to obtain a judicial separation are virtually the same as to obtain a divorce.

Living separate and apart pursuant to a valid separation agreement is, in New York State, the primary "no fault" ground for a divorce. The conditions to obtain a divorce on this ground are that the parties had entered into a valid separation agreement pursuant to the provisions of the Domestic Relations Law, that the agreement was properly filed in the county in which one of the parties resided at the time the divorce was commenced and that the party seeking the divorce had substantially complied with the terms and conditions of the agreement.

CUSTODY/VISITATION

Custody involves the issue of which parent the children should reside after a divorce or, if the parties are not married, separated. According to the law, each parent has an equal right to custody of the children. The Court must review all aspects of the parties in determining this issue. The primary consideration of the Court in determining this issue is the best interests of the children. As a result, virtually everything is important for the Court to consider.

In determining custody, the Court can award joint custody or sole custody. Joint custody primarily involves joint decision making of the parties and does not necessarily mean that the parties will share the children on an equal basis. On the other hand, sole custody involves decision-making by the custodial parent. Although New York Courts are not generally willing to grant joint custody in a heavily contested matter, the real differences between joint and sole custody are far less than in previous years as a result of the Court providing the non-primary residential parent with significant input to medical and educational information on behalf of the children as well as providing that parent access to extracurricular activities and other day-to-day involvement with the children.

In a contested matter, the Court appoints a lawyer to represent the children who is known as a "law guardian." Depending upon the resources of the parties, this attorney may be paid by the parties in addition to their payment of their own attorneys. The role of the law guardian is important in protecting the interests of the children and in making recommendations to the Court.

A major area of concern currently in litigation involving the children relates to "relocation" cases. This is the issue primarily of the custodial or primary residential parent desiring to move from the local area with the children. The factors to be considered by the Court as to whether or not it will permit such a move are extensive and this represents a significant portion of custody litigation.

CHILD SUPPORT/SPOUSAL MAINTENANCE

In New York State the non-primary residential parent is obligated, by law, to pay child support to the residential parent. Generally, pursuant to the Child Support Standards Act, the payments are 17% for one child, 25% for two, 29% for three, 31% for four and 35% for five or more children. These payments are based on the person's gross income less FICA and less payments being made on behalf of any other children or the payment of spousal maintenance pursuant to a valid Court Order or separation agreement. There are many other criteria which are significant in determining the exact amount of support and in high income cases, the percentages may not always be utilized.

In addition to the above payments, day care, medical insurance, uninsured medical expenses and payment for education (especially post high school education) are all issues of support which are considered by the Court.

Spousal maintenance, formally referred to as alimony, is the payment by one spouse to another to enable that spouse to economically survive. Generally, the longer the marriage and the greater disparity of incomes between the parties, the higher the amount of spousal maintenance and the longer period of time it will be paid for. Unlike child support, there is no standard formula utilized by the Courts in determining the amount of payments.

Although prior to 1980, marital fault was an absolute barrier to the payment of spousal maintenance, it is no longer the case today. Therefore, notwithstanding that one spouse may obtain a fault divorce against the other, the spouse "at fault" may still receive spousal maintenance depending upon other factors in the case.

A significant element of spousal maintenance is that generally, it is tax deductible to the person paying maintenance and tax includable to the person receiving it. In high income cases, this can be a very significant aspect to be considered.

EQUITABLE DISTRIBUTION

The fourth major pillar of any divorce action is the distribution of property or equitable distribution. The cornerstone for understanding equitable distribution is the phrase ICED-T. That is, Identify, Collect, Evaluate, Distribute and Tax consequences. By following this simple formula, one can understand the most complex equitable distribution case.

The equitable distribution statute took effect in July, 1980 and has evolved extensively since that time. Essentially, all "marital" property is subject to distribution except for "separate property." Separate property is generally defined as inheritances, property owned prior to the marriage, gifts from non-spouses and income received in compensation for a personal injury. In addition, appreciation of separate property is considered separate. However, extensive case law has eroded this concept so that a large portion of appreciated separate property is subject to distribution.

An extensive amount of litigation involves evaluating the assets and determining what percentage each party should receive of that asset. Property (assets) encompass virtually everything, including pensions, 401K retirement plans, the value of a professional license, the value of a professional business, business interests, the value of a special skill as well as the commonly thought of assets such as bank accounts, real estate, and stocks and bonds.

The interesting aspect of equitable distribution is that there cannot be a distribution of property without a divorce or pursuant to a valid separation agreement. As a result, an extensive amount of litigation involving the grounds for divorce involves parties who, for one reason or another, do not wish to have property distributed and therefore are opposing the underlying grounds of the divorce in the first place.

The use of experts is widely utilized in this area including tax accountants, CPAs, business evaluators, real estate appraisers and other similar experts. The cost of these experts can make the cost of litigating an equitable distribution case quite extensive.