How long will this take?
The length of the process varies for each divorce. It greatly depends on the complexity of the marital assets, as well as how much the spouses can agree upon. In a low-conflict divorce, the divorce can be completed within six weeks to a year. In a high-conflict divorce, the divorce can take more than two years.
Family Court proceedings will generally take at least four to six months from start to finish; however, those which are heavily disputed or involve complex issues can last anywhere from one to two years, or more.
Can I get the engagement/wedding ring back?
Most likely, you will not be able to get the rings back. Under New York law, the engagement/wedding rings are given prior to the marriage and are, thus, the “separate property” of each spouse. When you gave the engagement/wedding ring to your spouse, it was a “conditional gift” prior to the marriage and that gift was conditioned upon you and your spouse getting married. Although you will not be entitled to a portion of your spouse’s ring, when maintenance and equitable distribution are determined, the value of the rings can be considered as assets available to your spouse.
I work and my husband does not. Will I need to pay him support?
It is possible that your husband will receive maintenance. An order of maintenance is made without consideration to sex or gender. Both men and women may be entitled to receive maintenance.
How long will I have to pay maintenance for?
The duration of maintenance varies for each divorce. Although it is generally expected that maintenance will last between ¼ to ½ of the length of the marriage, there are circumstances where one spouse is required to pay maintenance to the other spouse for longer than that, sometimes even life (“permanent maintenance”).
Notably, in 2015, the Legislature passed “advisory” guidelines that it suggested courts to consider in determining the length of maintenance:
|Length of the marriage||Percent of the length of the marriage for which maintenance will be payable|
|0 up to and including 15 years||15%–30%|
|More than 15 up to and including 20 years||30%–40%|
|More than 20 years||35%–50%|
It is still unclear how courts will treat these “advisory” guidelines. Thus, it is critical that you have an attorney who can analyze you and your spouse’s individual circumstances.
However, it must be remembered that maintenance will likely terminate upon remarriage of the receiving spouse, the death of either spouse, and, depending on the circumstances, upon cohabitation of the receiving spouse.
How much is my child support obligation?
Although child support will vary from case to case depending on the add-ons, a very rough estimate of your basic child support obligation (without add-ons) can be obtained by using the following formula:
(Payor’s gross income on his or her last income tax return – FICA actually paid)
.17 (if one unemancipated child), .25 (two), .29 (three), .31 (four),Â .31 or more (five or more)
How long will I pay child support for?
Parents have an obligation to provide support until the child is emancipated. Emancipation occurs when the child:
- Reaches the age of twenty-one,
- Enlists into the armed forces of the United States of America;
- Becomes gainfully employed, fully self-supporting, and economically independent from the parents; or
- Is otherwise emancipated.
Do I need to pay child support while I also pay for my children to live away at college?
Most likely, yes. Although you are expected to pay child support until the child is twenty-one years old, or otherwise emancipated, you may receive a credit for some of the college expenses that you paid for the benefit of the child. Remember, although you may receive a credit, you cannot unilaterally change your child support payments without a court order directing such change.
I’ve heard that there is a presumption against the father getting custody. Is that true?
No. There is no legal presumption against a father getting custody. Primary physical custody is based upon the best interests of the child. Although judges typically direct primary physical custody to the parent that has been the primary care-giver, there are many factors to consider, including which the parent will best promote the child’s relationship with the other parent.
Does Melvin & Melvin handle same-sex divorces?
Yes, Melvin & Melvin handles same-sex divorce. New York no longer distinguishes between heterosexual and same-sex marriage and divorce; therefore, Melvin & Melvin is able to address the same legal issues applicable to heterosexual married couples as to same-sex married couples.
We are aware of the unique challenges facing same-sex couples and will pursue their cases passionately, but discretely, where appropriate. Our Trusts and Estates Department will further be able to advise these couples as to how to protect their assets and futures in states which are not as progressive as New York.