Frequent Questions

1. What can I do to protect myself from my spouse's malicious financial maneuvers?
2. Will marital fault be considered in my divorce?
3. What property is not subject to equitable distribution?
4. Now that I have commenced a divorce proceeding, it is awkward living under the same roof with my spouse. Can I get a court order to compel my spouse to leave the marital residence while the action is pending?
5. What is the likelihood that a father can retain custody of the children?
6. What can be done to prevent a custodial spouse from moving away with the children, thereby significantly decreasing the other parent's interaction with them?
7. How is child support and alimony calculated?
8. I do not have sufficient funds to pay my attorney's retainer and legal fees. Will an attorney decline my case?
9. What is the key to choosing the best divorce lawyer to represent me?

What can I do to protect myself from my spouse's malicious financial maneuvers?

At the initial consultation, your attorney should review with you your assets and liabilities. If you have joint credit cards and your spouse is mean spirited, you may be advised to terminate the credit card or lower the credit limit. If there are joint investment accounts, you may be advised to request the financial institution to either freeze the account or request that both parties sign for any transactions in order to avoid a spouse's unilateral looting of the account. In addition, you can protect yourself by gathering as much financial information as possible, including bank accounts, brokerage accounts stocks, trusts or life insurance polices, prior to meeting with your attorney. Although your attorney has the ability to discover your spouse's assets during the litigation, it is always easier and cost-effective to assemble existing documents in order to prevent a spouse from unilaterally transferring, depleting or hiding an asset.

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Will marital fault be considered in my divorce?

New York is one of the few states that requires marital fault as a basis to grant a divorce. Irreconcilable or irremediable differences are insufficient to establish grounds. (The parties may, however, live separate and apart pursuant to a separation agreement for a year, and then obtain a no fault divorce.) However, marital fault is usually not considered in the economic aspect of the case, unless such fault rises to the level of 'egregious conduct.' Marital fault may be considered in awarding custody. Custody is determined by the standard of "the best interests of the child." If a parent denigrates the other in front of the child causes physical or emotional harm to the other spouse, the court may deem that parent unfit to be the custodial parent and/or direct supervised visitation or limit visitation, as the case may be. In addition, parents who cannot amicably communicate with one another or agree on important issues regarding the child's health, education and welfare may forfeit his/her right to joint custody of the child.

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What property is not subject to equitable distribution?

Marital property is defined by the law to be all assets acquired during the marriage and prior to the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which the title is held, and is subject to equitable distribution. Separate property is defined as property acquired prior to the marriage, or received as gifts (from a party other than the spouse), or an inheritance, a personal injury award, or property designated as such by agreement (i.e. prenuptial agreement) and is not subject to equitable distribution. If an active asset, such as a business, was acquired prior to the marriage, and the value of the business increased as a result of the active efforts of the other spouse (whether by way of direct contributions of the titled spouse or indirect contributions of the non-titled spouse as a homemaker and parent), then the increase in value of the asset is marital property subject to equitable distribution. By contrast, a passive asset, such as a bank account, acquired prior to the marriage, is not marital property and if it appreciates it will remain a separate asset. When a separate asset is used towards the purchase of a marital asset, (i.e. a spouse uses his separate funds acquired prior to the marriage to purchase mutual funds in the parties' joint names), such property may be considered to be transmuted into marital property.

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Now that I have commenced a divorce proceeding, it is awkward living under the same roof with my spouse. Can I get a court order to compel my spouse to leave the marital residence while the action is pending?

Short of an agreement that one spouse will establish a separate residence in order to avoid the awkwardness of living under the same roof or the obtainment of an order of protection and stay away order (as a result of domestic violence), the spouse seeking to eject the other from the marital residence will require a court order.

If the husband, for example, has already established a separate residence, the wife is entitled to temporary exclusive occupancy of the residence until trial. It should be noted that in this situation, the husband, who voluntarily leaves the marital home with the wife to care for the children, is placing himself in a poor legal position to obtain custody of the children. If the husband desires to leave the marital home, he should discuss this with his attorney at the initial consultation and depending on the circumstances, the attorney may draft an agreement to be signed by both parties that such a move is not a waiver of his rights and to establish a visitation schedule or joint custody agreement. If the husband has not established a separate residence, the legal standard is proof of physical abuse or extreme mental abuse.

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What is the likelihood that a father can retain custody of the children?

In determining custody, courts do not discriminate on the basis of sex. The court will assess the "best interests of the child" by weighing the recommendations of the forensic psychologist, the fitness of each parties and, in some cases, when the child is old enough or mature enough to express his or her preference, the court will consider the child's preference. If the father is the working parent and the mother is the full time stay at home parent, typically the children will stay in the custody of the mother who is available to continue to raise the children in a nurturing environment. However, if the parents are able to communicate amicably regarding the children, the father may still be entitled to joint legal custody with the ability to spend a liberal amount of time with the children.

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What can be done to prevent a custodial spouse from moving away with the children, thereby significantly decreasing the other parent's interaction with them?

If you settle your case by an agreement, your attorney may negotiate a non-relocation clause in the agreement to prevent the other parent from moving away with the children.

Without such an agreement, the standard for relocating with the child is "the best interests of the child." The court will weight the impact of the child's move, including decreased visitation time with the other parent and the effect on his education and social relationships, against the reason for the relocation. A parent who wants to relocate as a result of remarriage or employment opportunity must show that such a move will be in the child's best interest and not simply to fill the parent's desires.

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How is child support and alimony calculated?

The Child Support Standards Act (CSSA) provides that children under the age of 21 are entitled to be supported by that formula. Child support is determined by multiplying the combined parental income of the parents up to $80,000 by the appropriate child support percentage (17% for one child, 25% for two children, 29% for three children, 31% for four children and 35% for five or more children), and then allocate the amount between the parents according to their share of the total income. Where the combined parental income exceeds $80,000, the court has discretion to make an award based on this additional income by considering factors such as the financial resources of the parents; the special needs of the children; the standard of living the children would have enjoyed had the marriage not been dissolved; the non-monetary contributions of the parents towards the child; the educational needs of the parents; and a determination that the income of one parent is substantially less than the other parent's income.

As an example, let's say that there are two children of the marriage. The non-custodial parent, the husband, has an income of $200,000 annually and the custodial parent, the wife, has an income of $50,000 per year. The husband's pro rata share of the basic support obligation is 80%. Since there are two children, the first $80,000 of income must be multiplied by 25%, which equals $20,000 per year of basic support obligation. The husband's pro rata share is calculated as 80% X $20,000 per year or $16,000 per year. This is the mandatory obligation. The court must then consider the combined income over $80,000, to wit, $17,000 x 25% x 80% pro rata share = $34,000. The court has discretion to award up to $34,000 in additional child support. In addition to basic child support, the court may also award a pro rata share of childcare, health and education expenses depending on the circumstances of the case.

Alimony, which is called "maintenance" in New York, is more discretionary, and is meant to provide financial support to the spouse to enable him or her to become self-supporting. The amount and duration of maintenance is determined by various factors including the length of the marriage; the age, health and education of the parties; the parties' marital lifestyle and standard of living; whether a spouse gave up his or her career to be a homemaker and full time parent, (lost earning capacity); the time, expense and education necessary to rehabilitate a spouse who has been out of the workforce; and the future earning capacity of each party. When calculating maintenance, the court will first subtract from the payor spouse's income the amount awarded as child support so as not to double count income. An attorney experienced in the field of matrimonial law should be able to predict the amount and duration of support based on knowledge of prior cases.

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I do not have sufficient funds to pay my attorney's retainer and legal fees. Will an attorney decline my case?

Not necessarily. Depending on the circumstances of the case, if there is a disparity of income between the parties and your spouse has sufficient income and assets to pay counsel fees, your attorney may make a motion to the court to direct your spouse to pay your attorney's fees. In addition, your attorney can also request that the court direct your spouse to pay interim child support and maintenance until the court makes a final determination at trial as to a permanent award.

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What is the key to choosing the best divorce lawyer to represent me?

Apart from professional excellence, the key is to choose a person with whom you feel most comfortable and confident. You will be working and communicating with this attorney on an almost daily basis during this difficult, emotional and financially stressful time. Ask yourself the following: will my attorney listen to what I have to say and address the issues that are important to me? Does my attorney have the necessary litigation and trial experience in this field to get me the best financial result possible? The attorney you choose should be willing to give you an overview of how the case will proceed and what you can expect. Beware of lawyers who give you one-sided views, or make guarantees that cannot be fulfilled. There are strengths and weaknesses to every case and a good attorney will make you aware of them. The attorneys at Samuelson, Hause & Samuelson concentrate their practice in matrimonial law and have over sixty years of combined experience, and will be sensitive to your needs throughout the duration of your matter.

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