At Goldweber Epstein LLP, we know that filing for marriage dissolution needs careful and thoughtful consideration. As our valued client, we want to help you make informed decisions even before we get started with your case. Below are some of the most frequently asked questions by our past clients that may assist you on how you want to proceed with your case.
Question: How does someone start an action for divorce or separation in the State of New York? Do I need to say why I want a divorce or is just wanting one enough?
Answer: New York is a no-fault state, which means you simply have to file a separation agreement or file a Summons with Notice for Divorce. That also means the fault grounds for a divorce in the State of New York are now as simple as irreconcilable differences.
Other reasons for a divorce may include:
Several of our clients agree to the grounds usually for cost reasons and because in most cases, both parties want to divorce. For our clients who disagree, the judge may hold a grounds trial before any financial issues are discussed.
Now, New York has no fault divorce, based upon on irretrievable breakdown of the marriage for a period of six months or more. When the plaintiff acquires a Summons with Notice for Divorce, an automatic restraining order is applied to him/ her and as soon as the Notice is served to the other party, the restraining order binds the defendant as well. This is considered a major change under New York State law.
Question: If I file for divorce, how do I go about obtaining child support, alimony, and other financial compensation? Am I entitled to financial support during the divorce process, before the divorce is finalized?
Answer: Yes. When you file an action for divorce, you must state the financial as well as custodial relief that you are pursuing to be awarded by the Court. Financial support pending during the divorce proceeding is referred to as "pendente lite" or interim relief. This type of relief can be acquired through an application process requesting the Court for child and spousal support, payments to third parties and access to the children. It also provides a means for allocating each party's contribution to the family’s overall financial needs.
Question: What does "equitable distribution" of marital assets mean? Does it include my spouse’s and my businesses? Does it mean that all marital assets are equally divided?
Answer: Equitable distribution in New York, does not mean equal. It means what the parties agree to as being equitable under their circumstances based on their marital arrangements; or, if the parties are unable to agree, then the Court decides what is equitable.
Question: Does the divorce action include filing for custody of my children or is that something separate? How does the Court decide who gets custody, who pays for child support and other issues concerning my children?
Answer: Pursuing custody is part of your divorce action as ancillary relief in the divorce action.
There are two components of custody:
Custody and access may be decided with the assistance of a forensic psychological or psychiatric evaluation of the entire family, depending on the circumstances.
Question: My gay/lesbian partner and I have been together for many years. We want to make certain that should end-of-life decisions have to be made, that we are allowed to make them for each other. How does the law view this and can we make arrangements for this? We don't want our families who disapprove of our lifestyle to circumvent our choice.
Answer: Each partner should execute a health care proxy setting forth the other partner as the individual to make end-of-life decisions. It would also be helpful if the parties exchanged Powers of Attorney. It is perfectly acceptable to designate a nonfamily member as the individual to make medical decisions for you if you are unable to make them for yourself.
Question: When my divorce was finalized, an agreement was reached regarding childcare expenses. My ex-spouse, however, is not compliant to his/her end of the agreement and is not paying his/her fair share. How do I ask the Court to force him/her to pay the agreed to amounts for raising our children? What do I do? Is it possible to stop him/her from seeing our children until he complies?
Answer: You cannot decide to stop visitation if your ex-spouse is unable to fulfill the terms of your Financial Agreement or Court Order. Only the court can suspend visitation or access. Since money matters are not related to access or visitation, the Courts may be reluctant to terminate access due to failure to pay. If an ex-spouse is not living up to the terms of Agreement or Judgment of Divorce, then you have to make a written application requesting the Court (Supreme or Family) to direct your former spouse to comply. If the other party continues to default in making payments regardless of the court order, then you can file a contempt against him/her that may result in incarceration.
Question: I have significantly more assets than my fiancé and I want a prenuptial agreement that can ensure that should our marriage not work out, that he or she has no right to take my assets. How do I do that?
Answer: A Prenuptial Agreement must follow statutory requirements. As long as they do, such Agreements are enforceable. Attorneys can draft Prenuptial Agreements that can protect your separate property assets, as well as any appreciation on those assets, and ensure the protection of your property. You can make any provisions in your prenuptial agreement, so long as both parties agree and the provision is not against the public policy of the State of New York.
Question: My ex-girlfriend had a child after we broke up. Now she says I am the father. I do not think I am and believe that there are other guys who might be the father. What do I do?
Answer: The court will order that simple blood test be performed on the putative father, mother, and child to determine whether there is a DNA match. Either the mother or the putative father may request that the test be performed.
Question: How do I determine what share of my spouse's business I am entitled? What questions do I need to ask?
Answer: In New York State, certificates, degrees, and licenses necessary for employment, earned during the marital term are valued. Business interests are also valued so that the noninvolved spouse can receive a share of the marital portion of a business, the business degree, and license. If the business was started before the marriage then the noninvolved spouse's share is measured from the date of marriage, through the commencement date of the marital action. The parties or the Court usually retain an appraiser for valuation purposes.
Question: My spouse and I have a business together. Do we have to close the business when we divorce?
Answer: If you can get along with your former spouse, there is absolutely no reason for you to close the business. If not, then the business will be valued and normally one party will buy out the other.
The percentage received by each partner depends on a number of factors, including:
The Agreement executed in connection with finalizing your divorce will include provisions relating to the business, including buyout terms, responsibilities to the ongoing enterprise, role/title of former spouses, etc.
We have assisted clients with their employment contracts, and dissolution of partnership interests.
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