Divorce Law
Divorce can be one of the most difficult and emotional periods of one’s life It also can be a financial hardship to a spouse who was not involved with the family finances. One needs quick answers as to how much they are entitled for child support, maintenance, etc. One needs an experienced matrimonial attorney who can provide the answers to these critical issues. We will fight for your rights and obtain quick relief from the Court so that the status quo will be maintained.
Michael F. Kanzer Esq. is an experienced, dedicated, compassionate, and successful lawyer that has handled over 600 divorces in the past 30 years .
We also excel in negotiation techniques which we employ throughout the litigation process, this often helps resolve matters more amicably and efficiently, rather than having to go through a trial. We do what is in the best interest of the client. We will help you make the right decision as to whether or not to settle your case.
We have been a member in good standing to the New York State Bar Association for more than 20 years.
Is there a type divorce where I don’t need a divorce attorney in NY?
There is no rules that you need an attorney to file a divorce in NY. However, even if both sides agree, the procedure and forms to file a divorce are complicated in New York. It is highly recommended to hire an experienced divorce attorney.
What are the grounds for divorce accepted in NY?
Divorcing spouses may also still seek a divorce in New York based upon Fault by alleging any of the following grounds:
- Abandonment for at least one year
- Irretrievable breakdown ( NO FAULT DIVORCE)
- Constructive abandonment or refusal of sexual intercourse by one party for more than one year
- Cruel and inhuman treatment that makes it unsafe or improper for the couple to continue living together (physical or mental abuse)
- Incarceration for at least three consecutive years after the marriage
- Adultery
If a spouse asks for a divorce based on any of the fault grounds, he or she will have to prove to a judge that the other spouse actually committed the misconduct. Therefore, most parties prefer a no -fault divorce rather than the emotional and financial strain involved with a fault divorce.
There is also a divorce based upon being separated pursuant to a separation agreement for more than one year. The parties must live in separate residences and the agreement must be filed with the court prior to commencement of the divorce.
Since 2010, a New York couple may get a no-fault divorce if one of them states, under oath, that the marriage has broken down irretrievably for at least six months. (Basically, what does this mean to them? What is a no-fault divorce?)
However before a court will grant a no-fault divorce, the couple must show that all of their divorce-related issues, such as child support, custody and visitation of child, child support, and division of assets have been resolved. This can be done between the spouses in a divorce settlement agreement or by a court order.
What can a family law or divorce attorney help me with?
We can also help you if you do not want to be divorced.at this time. We prepare legal separation agreements. In said agreements, the parties can have a binding legal agreement which can resolve critical issues as custody, visitation, child support, maintenance, and division of assets. The parties can get divorced based upon this agreement after one year. This agreement can be incorporated into a divorce judgment. We also represents clients in family court to obtain custody, child support , Orders of Protection, visitation, etc.
How do I know how much alimony and child support I can get?
Spousal maintenance also known as Alimony is basically a payment made from one spouse to the other. Married people are responsible for the support of their spouses and may end up being responsible for paying a specific sum deemed by the court.
There is a new maintenance law that was recently signed into law by Governor Cuomo. A summary of key provisions of the new legislation, as it relates to maintenance, is as follows:
- The statute establishes an income cap to be used for the calculation of temporary maintenance and permanent maintenance at $178,000 of the payor’s income. The new cap is more in line with the cap that is used for the calculation of child support.
- The statute provides for two sets of formulas in the calculation of maintenance. The first set of formulas is used when the payor’s income is at or below the cap. Within that scenario is a formula for when the payor is also paying child support and the other for when the payor is not paying child support. The other set of formulas is used when the payor’s income is above the cap. This second scenario uses the calculation for maintenance with income at or below the cap and then applies a series of deviation factors that the court can apply to income above the cap in its calculation.
- In determining temporary maintenance, the court shall consider the parties’ responsibility for payment of family expenses during the pendency of the proceeding.
- Temporary maintenance shall be calculated prior to child support because the amount of temporary maintenance shall be subtracted from the payor’s income as part of the child support calculation.
- Temporary maintenance shall terminate no later than the issuance of a judgment of divorce or the death of either party.
- In determining permanent maintenance, the statute provides that income from property distributed to each party be considered.
- The statute provides for an advisory schedule for the court for determination of the duration of the maintenance obligation which is based on the term of the marriage. Term of the marriage is defined as date of marriage until date of commencement of the divorce action. The court shall take into account retirement assets and retirement age, if ascertainable. If not ascertainable, the full or partial retirement of the payor with a significant reduction in income shall be a basis for modification. The statute does not prevent the court from awarding non-duration maintenance. Whether or not the court uses the advisory schedule, the court must state what deviation factors it considered.
THE COURT MAY DETERMINE THE DURATION OF POST-DIVORCE MAINTENANCE IN ACCORDANCE WITH THE FOLLOWING ADVISORY SCHEDULE: BUT IN ANY EVENT, THE COURT MUST CONSIDER THE 15 POST-DIVORCE MAINTENANCE FACTORS enumerated in the statute:
Length of 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%
The following are the 15 factors to be used as FOR POST-DIVORCE MAINTENANCE PURSUANT TO DRL §236B(6)(E)(1)FOR ADJUSTMENT or deviation OF AWARD, FOR DURATION OF AWARD, OR WHERE PAYOR’S INCOME EXCEEDS $178,000 1. the age and health of the parties; 2. the present or future earning capacity of the parties, including a history of limited participation in the workforce; 3. the need of one party to incur education or training expenses; 4. the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded; 5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;; 6. the existence and duration of a pre-marital joint household or a pre-divorce separate household; 7. acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; 8. the availability and cost of medical insurance for the parties; 9. the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;; 10. the tax consequences to each party; 11. tthe standard of living of the parties established during the marriage; 12. the reduced or lost earning capacity of the payee as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; 13. the equitable distribution of marital property and the income or imputed income on the assets so distributed; 14. the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and 15. any other factor which the court shall expressly find to be just and proper.
New York law says that children are entitled to share in the income and standard of living of both parents. Child support is the money that the non-custodial parent pays to the custodial parent if the child is under 21. Child support is based on a strict formula. See the Child Support Standards Chart.
Child support may be awarded by the Supreme Court as part of a divorce, or in Family Court as part of a child support proceeding.
The court determines each parent’s net income. Net income is gross income minus certain deductions, such as FICA, NYC income tax, Yonkers income tax, spousal support and child support paid for other child(ren). Second, the court adds the parents’ net income together and multiplies that number by a percentage, depending on how many children they have:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- no less than 35% for five or more children
That amount is then divided based on the proportion of each parent’s net income to the combined parental net income. In addition to the basic child support obligation, a spouse may also be required to pay for child care expenses, educational expenses and medical expenses.
Division of property how it works under New York Matrimonial Law
When the court grants a divorce, property will be divided equitably (though not always equally) between the spouses. Assets will not always be divided 50/50.
New York’s Equitable Distribution Law recognizes marriage as an economic as well as a social partnership. The law requires that a judge divide property as fairly as possible. The Equitable Distribution Law talks about two types of property for purposes of divorce: marital property and separate property. Marital property will be divided between the two spouses.
Marital Property is all property either spouse bought during the marriage, regardless of whose name is on the property. Pension plans and other retirement plans are considered marital property. The portion of marital property earned during the marriage will be divided by the court.
Separate Property: property a spouse owned before the marriage, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage.
Will all assets be split 50/50?
Answer is No as per above text.
New York Divorce Law regarding wait times, separation periods, residency requirements and fees
New York Divorce Law regarding wait times, separation periods, residency requirements and fees.
In order to file a divorce in NY, one of the parties needs to have ties or contacts with New York in order to file in the New York Courts.
The five basis for establish residency in New York are the following.
1. The parties were married in New York, and either party lived in New York for one year prior to filing. DRL 230(1)
2. The parties resided in New York as husband and wife (or husband and husband), and either party lived in New York for one year or more prior to filing. DRL 230(2).
3.One party needs to have lived in NY continuously for at least 2 years prior to filing a divorce
4. The grounds of divorce occurred in New York, and both parties live in New York at the time of filing. DRL 230(4). What is the cause of action? How would you explain that to your clients?
5. The cause of action occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action.
Is Same Sex Divorce Valid in NY?
We of course also handle divorces for same sex couples.
