Issues to be Determined in a Divorce

DivorceA divorce can be tough on all  parties involved, including children.  Divorce impacts all aspects of the family unit and  can be emotionally and financially taxing on the parties.  All economic issues, support issues and child custody issues are settled or determined by a court. The manner in which couples choose to settle these issues will determine the cost and emotional toll the process will take on the family as a whole.

The Process

Spouses have a number of options as to how to proceed in obtaining a divorce and resolving the issues unique to their family situation.  Not all cases belong before a court.  If spouses are amenable and generally agreeable, they may opt for mediation to resolve their issues.  That process is detailed on our firm mediation page (link to page).   The parties can also work together through their respective attorneys to negotiate a settlement in a more collaborative process without ever having to see the inside of a court room.

Mediation and negotiation, however, are not for every couple.  Sometimes the parties have more difficult issues to resolve and the court’s intervention is required.   Take for example, cases involving domestic violence or abuse, or fiercely contested custody battles.  Neither mediation nor negotiation will likely work in those situations, nor would it be recommended.

The Divorce

Divorce is the legal dissolution of the marriage.  A divorce in New York State can be obtained by alleging and proving spousal misconduct in the form of grounds for divorce or by simply alleging that the marital relationship has been irretrievably broken for a period of six months prior to the commencement of the divorce action (no-fault divorce).  Most divorces are sued on no-fault grounds because the divorce is basically guaranteed and the grounds have little to no bearing on the financial resolution of the divorce, except in rare circumstances.  Spousal misconduct, if proved, however, can have effect on custody, depending on the nature of the misconduct.

Custody

For couples with children, custody is often the most difficult issue to resolve.  In our experience, parents generally love their children and the thought of not spending time with the children everyday can be overwhelming, especially where the children are very young or where there are concerns about one of the parents.

There are two aspects to custody, legal custody and physical custody.  Legal custody involves decision making on major decisions affecting the children’s lives.   The legal custodian(s) will decide where the children attend school, how to treat health issues impacting the child, religious upbringing, extra-curricular activities, etc.  The parties can agree or a court can order that both parties share joint legal custody, meaning the parents must consult and agree on major decisions impacting the children’s upbringing.  In situations where joint legal custody is not appropriate, the court will designate one party as sole legal custodian.  Here, the sole custodian makes the decisions and informs the other parent of the decision.

Next, there is residential or physical custody.  The physical custodian will have the children in their care for the majority of the time.   The non-physical custodian will have parenting time or visitation with the children as agreed to between the parties or assigned by a court.

There has been a trend over the past several years where parents agree to share physical custody, meaning the parents have the children in their care for an equal period of time.

When courts decide custody cases, the overriding consideration is the best interest of the child.  The Court will appoint an Attorney for the Child to represent the interests of the child(ren).  Courts consider a number of factors when determining the best interest of the children which include, but are certainly not limited to:

 

  1. The ability of the parent(s) to co-parent and communicate with one another.
  2. The financial stability of both parents
  3. The mental and physical health of the parents
  4. The needs of the children and the parent’s ability to provide for the children’s needs
  5. The wishes of the child and the age and maturity of the child.
  6. The ability of the parents to foster a loving relationship between the child and the other parent.
  7. The conduct of the parties and whether there are issues of domestic abuse or neglect.

 

Marital Property and Distribution of Property

Marital Property is generally property acquired during the marriage, with some exceptions.  Property can include the marital residence and other real estate, a business interest, life insurance, retirement assets, bank accounts and personal property.   Marital property is divided equitably among the parties to the divorce.  It is important to know the equitable does not always mean equal.

Separate Property

Separate Property is property acquired by the parties either party before the marriage or even during the marriage depending on the circumstances.  Separate Property remains the property of the titled spouse.

Marital Indebtedness

Marital Debt is generally debt acquired by the parties during the marriage with some exceptions.  Courts will generally divide marital debt equitably, not necessarily equally, taking into account a number of factors, including which party incurred the debt and the purpose for which the debt was incurred.

Child Support and Alimony (Spousal Maintenance)

In situations where there is a large disparity in the spouses’ incomes, the higher earner could be chargeable with paying spousal maintenance to the lower earner.  There is a formula for determining whether maintenance will be paid and at what amount.  Spouses can apply for temporary maintenance (payable while the divorce action or support matter is pending) and/or post-divorce maintenance.  The law does not provide a definitive formula for determining how long maintenance will be paid after the divorce; however, the statute does provide a recommended range based on the length of the marriage and other factors.

Child Support is paid by the non-custodial parent.  In cases where the parties share physical custody, the higher earning spouse is deemed the non-custodial parent for child support purposes.  The law is pretty harsh in this regard, especially where the disparity in income is nominal.  Some courts are more willing than others to deviate downward to avoid an unjust result.  The Child Support Standards Act provides that the non-custodial parent will pay the custodial parent 17% of gross income less FICA for 1 child; 25% for two children; 29% for 3 children; 31% for 4 children and 35% for 5 or more children.  There is a cap for combined parental income which presently is set at $143,000.00.

These issues are not easy to navigate on your own and it’s certainly not advisable. You need a legal team you can rely on to solve your legal problems. To schedule a consultation, call Melvin and Melvin at (315) 422-1311 or to contact us via email click here.