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FAQ About Family Law

What is a "matrimonial action?"

Four different types of law suit are called "matrimonial actions" in New York: Divorce, Separation, Annulment and Declaring the nullity of a void marriage. Divorce terminates a marriage. Annulment also end a marriage, but it is based on whether or not the marriage was willingly and knowingly entered into. Separation does not terminate the marriage, but declares that one party cannot require the other party to live with him or her. Finally, an action to declare the nullity of a void marriage addresses cases in which the parties were legally incapable of marrying (under age for example).

What are grounds for divorce in New York?

New York has seven different grounds for divorce, but since 2010, "irretrievable breakdown" of the marriage for more than 6 months. This is New York's "no fault" divorce and has become the ground of choice for most people seeking to end their marriage. Other grounds include adultery, abandonment for more than 1 year, cruel and inhuman treatment, imprisonment, and living separate and apart pursuant to a written separation agreement.

What are grounds for separation?

Separation grounds include adultery, cruelty, abandonment and imprisonment, except abandonment need not be for a year; just one day will do. There is no ground of "irretrievable breakdown." A decree of separation leaves the parties married, but permanently apart. Lawsuits for separation are rare; usually, a plaintiff sues for divorce.

What is a Separation Agreement?

A married couple can sign a written agreement in which they agree to live separate and apart. Such an agreement usually includes provisions for division of property, debts, child custody, visitation, support, and other matters, and it usually provides that its terms will be incorporated into any subsequent divorce. If a divorce action has already begun, the parties' agreement is termed a "property settlement agreement."

How is Annulment different from Divorce?

Annulment grounds are based on the circumstances which led the parties to marry in the first place. One who is persuaded to marry by fraud (trickery, false promises, misrepresentation) or by coercion (threats, "shotgun wedding") can sue for an annulment. One may sue for both divorce and annulment and use overlapping grounds: e.g. A cruel and adulterous spouse who promised to be loving and faithful. Tolerating the marriage after the fraud is discovered or the coercion has passed may ratify the marriage and prevent the granting of an annulment.

What other issues are decided in a matrimonial case?

In divorce and annulment cases, the judge must also decide the "ancillary issues" of child custody, visitation, maintenance (alimony) and child support, possession of property, division of assets and debts, and the award of attorneys fees. The same issues must be decided in separation cases too, except for the dividing of marital assets, since these can only be divided upon a divorce. The court can grant temporary orders of support, custody, visitation, exclusive occupancy of the home, and protection while the case is pending.


How is child custody and visitation determined?

Custody and visitation is determined by the judge based upon "the best interests of the child" which depends upon the facts of the case. When custody is in dispute, the court appoints a law guardian, an attorney to represent the child(ren), and will sometimes request a probation department investigation of each parents home and/or a mental health evaluation by a social worker or psychologist. Joint custody is not favored in New York (unlike some states), but will be approved if agreed to by the parties. Most joint custody arrangements designate one parent as the primary custodial parent, much like sole custody, but may also provide for decision making input by the other parent and access to school and medical records. Preparation and trial of disputed custody can often involve more time and expense than a divorce trial on fault or economic issues.


How is child support and maintenance (alimony) determined?

Child support follows statutory guidelines. The noncustodial parent pays a percentage of income, meaning gross income, minus FICA deduction and minus any maintenance payments or payments for any other court ordered child support, multiplied by a percentage, as follows: One child-17%, 2 children-25%, 3 children-29%, 4 children-31%, 5 or more children-35%. Child support terminates at age 21 or sooner if emancipated (self supporting). Child support is not deductible by the payor nor taxable to the recipient. Also, the payor does not get the children's exemptions; they usually go to the custodial parent. Maintenance is support for a spouse. There are no specific guidelines as to amount or duration, but maintenance is more likely awarded when there is a significant disparity in income, or a health problem, or a long term marriage to a nonworking spouse, or a special need. Maintenance is deductible by the payor and is taxable to the recipient.


How are property issues determined?

There are two types of property: separate and marital. Separate property includes that owned before the marriage, personal injury awards, and gifts from someone other than a spouse. Marital property is everything else. Separate property remains separate. Marital property is subject to "equitable distribution" based on numerous factors, but courts tend to split assets evenly unless that would be significantly unfair.


What is handled in Family Court?

In New York, only Supreme Court can grant a divorce, annulment or separation, or divide property. However, many related issues which are normally dealt with in a divorce suit may be handled in Family Court. Family Court has jurisdiction to decide custody and visitation cases and to award support for spouses and children, so long as no divorce or separation action is pending. It can also handle these issues after a divorce is granted and can modify or enforce Supreme Court decrees as well as its own orders regarding custody, visitation, and support. It does not handle property issues, however, and these must be taken to Supreme Court. Family court also handles other matters including paternity, juvenile delinquency, PINS (Person In Need of Supervision), child abuse, family offense, and some adoptions.


PLEASE NOTE: This very brief collection of questions and answers does not cover all relevant questions nor do they cover any subject thoroughly. Specific issues should be discussed with a lawyer. This information pertains only to New York law. [7/15]

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