General FAQs

A: In New York, child support is determined by statutory guidelines. Generally, the Court will calculate child support based on 17% of one's adjusted gross income for 1 child, 25% for 2 children, etc. However, the Court has the discretion to deviate from these guidelines, based on numerous factors. One primary factor is if the parents' combined income exceeds $163,000 (the cap as of March, 2022). There are also some other factors the court considers: day care expenses, medical/dental insurance costs and educational expenses - if the custodial parent incurs these expenses and they are unreimbursed, the non-custodial parent may be obligated to pay a portion of these expenses in addition to payment of the "basic child support" as explained above. Additionally, in 2010, New York law amended its child support guidelines to include an automatic modification of child support once every three years. This means that if your child support order is up for a review, you may simply file a petition at the 3-year mark & have the Court re-calculate support based on current incomes. Moreover, if you or your child's parent has undergone a substantial change in circumstances, warranting a modification, the court can also assess your situation to determine if a modification is necessary. There are several other factors which the Court considers, as detailed below:

(1) The financial resources of the custodial and non-custodial parent, and those of the child;

(2) The physical and emotional health of the child and his/her special needs and aptitudes;

(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved; (4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;

(6) The educational needs of either parent; (7) A determination that the gross income of one parent is substantially less than the other parent's gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and

(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.

A: Often a share of significant assets can turn on the precise definition of what constitutes "marital property" versus "separate property." In a nutshell, a non-title-holding spouse gets a share of marital property, but does not share in separate property (though there are many exceptions to this).

1. "Marital Property"

New York Domestic Relations Law section 236 defines "marital property" as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held," except pursuant to the terms of a validly-drawn separation agreement, pre/post-nuptial agreement, or stipulation of settlement.

2. "Separate Property"

The same statute defines "separate property" to mean (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties (as described above).

A: Maintenance (other states use the term "alimony") is determined by a number of issues relating to a marriage. It may be temporary or permanent. Although it is not a given right to either spouse, the courts will generally order a certain amount of spousal support based on the following factors (this is a non-exhaustive list): duration of the marriage, income of both spouses, age of both spouses, health/special needs of either spouse, circumstances surrounding spousal support are unique to each couple, and therefore the court uses its discretion when determining maintenance orders. In most cases, attorneys' fees for matters surrounding maintenance are paid for by the spouse with the higher income. Indeed, in 2010, New York passed statutes making interim maintenance & counsel fees presumptively awarded on all cases involving a higher-earning spouse versus a lower-earning spouse. Additionally, as with child support orders, a maintenance order may be modified if the court can be shown there has been a substantial change of circumstances in the life of either party involved (though if there was a valid written agreement such as a "stipulation of settlement" or "separation agreement," the standard to modify may be "unanticipated change of circumstances"). The statutory factors are:

(a) the age and health of the parties;

 (b) the present or future earning capacity of the parties, including a  history of limited participation in the workforce;

 (c) the need of one party to incur education or training expenses;

 (d) 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;

 (e) the wasteful dissipation of marital property, including transfers  or encumbrances made in contemplation of a matrimonial action without fair consideration;

 (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

 (g) 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;

 (h) the availability and cost of medical insurance for the parties;

 (i) 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;

 (j) the tax consequences to each party;

 (k) the standard of living of the parties established during the marriage;

 (l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;

 (m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;

 (n) 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

 (o) any other factor which the court shall expressly find to be just and proper.

A: The overall standard is the "best interests of the child." Within that standard, the court considers "the totality of the circumstances." That said, there are a number of other specific factors that the court considers when awarding custody when dealing with two biological parents.

1. Overall factors

The Judge will generally consider the stability of the child's current arrangement, each parent's home environment and financial ability to meet the child's needs, any arrangements to care for the child when the parent is unavailable, who has been the primary caretaker for the child in the years (or months) leading up to the custody filing, any drug/alcohol abuse by either parent, past criminal behavior of a parent, the mental & physical health of the parties, adverse sexual misconduct or other moral character flaws of either parent, domestic violence, as well as the child's preferences.

2. Other factors

The court will also assess each parent's willingness to foster a relationship between the other parent and the child (including issues of parental alienation and/or involving the child on parental conflict), any denial of access to the child, as well as any abuse or neglect of the child. The Court will also consider availability of either parent to care for the child, as well as false accusations made against the other party. Likewise, a party’s conduct during the pre-trial phase will be considered, such as conduct in court, illicit recordings or other unlawful conduct towards the other parent, lateness with pick-up/drop-offs or inflexible parenting approaches (e.g., one parent trying to be the dictator towards the other). Finally, the Judge will assess the parties conduct as the case is proceeding, including whether a party has misled the Court or violated any pre-trial orders.

3. Strategy considerations

First, no matter how tense the situation may be around the house, do NOT move out of the house & leave the kids with the other parent. This will automatically put you behind the 8-ball in winning custody.

Additionally, if you haven't been already, take an active part in EVERYTHING the children are involved in. Make sure his/her teachers, doctors, extracurricular activity instructors, etc. know you by your first name.

If you presently work long hours, cut it out immediately. Spend the extra time with your kids. Take them fun places & buy them nice gifts (though caution must used not to over-do it as it otherwise would look like you're trying the bribe them).

Keep a written diary of any important conversations or interactions with the other parent (a "he-said-she-said" log). Refrain from posting negative content about the other parent on social media as this is potentially discoverable - if you have something to say to a friend/family member, say it in person. Refrain from cursing or denigrating the other parent, especially in writing (I don't know how many cases I have in which one side curses or denigrates the other via text and/or e-mail).

Finally, consult a good Child Custody lawyer in your area.

A: In New York, custody can be determined in a number of ways:

1. JOINT CUSTODY: In a joint custody situation, both parents have the legal authority to make major life decisions on behalf of their child concerning issues like religion, education or health care. Sometimes they agree to have "equal decision-making" which means they must reach agreement on all major decisions, or else the decision would be submitted to a mediator or Judge to decide. In other agreements, the primary custodial parent gets final decision-making after full consultation with the non-custodial parent. Joint Custody in New York is often reached via agreement but rarely imposed upon the parents by the Judge.
2. SOLE CUSTODY: When a parent is given sole custody, the child will physically live with him or her, and he or she will have the ultimate authority to make everyday and major life decisions for the child.
3. SHARED CUSTODY: When parents share custody, they generally split their access to the child 50/50. A shared custody situation is very rare.
4. SPLIT CUSTODY: This is a situation in which at least 1 child lives with one parent, and at least 1 child lives with the other parent. Negotiating a custody plan can be complex. It is important to remember that the court ultimately looks at what is in the best interests of the child. For fathers, this means that if you and your child's mother separate, it is important to remain in the child's life as much as possible. Both parents -- custodial or noncustodial -- should keep as much physical evidence as possible that may strengthen their case.

A: NY has statutory factors that the Judge must consider in dividing marital assets, debts & property. New York is an "equitable property" state. This means that any property, asset and/or debt accrued during your marriage is considered marital property, and therefore subject to distribution between parties. "Equitable", otherwise known as "fair", means that the court will use its discretion to determine how and to whom property will be distributed. Some examples of marital property are as follows: homes and other real estate properties, retirement plans (pension, 401(k), etc.), professional degrees and licenses, art, decor and other personal property, as well as cars, boats, RVs, etc. (this is a non-exhaustive list). Additionally, the "appreciation" in value of some separate property may also be distributed to the non-title-holding spouse, if s/he can prove sufficient direct/indirect efforts which allowed the appreciation to occur. And because any distribution done by the Court must be "equitable," this means in some case it is 50% but in other cases the court could use a higher (60+%) or lower (0-40%) percentage. Moreover, the Court may distribute some assets (like a house or bank account) 50%, and other assets (like the value of a degree) only 10-20% within the same case.

1. Statutory Factors

The statutory factors pursuant to Domestic Relations Law 236 are:

1. the income and property of each party at the time of the marriage, and at the time of the commencement of the action;
2. the duration of the marriage and the age and health of both parties;
3. the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
4. the loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
5. the loss of health insurance benefits upon dissolution of the marriage;
6. any award of maintenance under Domestic Relations Law, Section 236-B(6);
7. any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
8. the liquid or non-liquid character of all marital property;
9. the probable future financial circumstances of each party;
10. the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
11. the tax consequences to each party;
12. the wasteful dissipation of assets by either spouse;
13. any transfer or encumbrance made in contemplation of a matrimonial action without a fair consideration; and
14. whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts; and
15. in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
16. any other factor which the court shall expressly find to be just and proper.

Other factors

Under the "any other factors" application, a Judge may consider such things as financial assistance from the parents of one spouse which allowed for the accrual of assets and/or property, unpaid work one spouse performed in the other's business as well as the period of physical separation of the parties prior to the commencement of the divorce. One common factor usually NOT considered in the distribution of property/assets is marital fault.

• Parent’s reasons for seeking or opposing the move;
• The quality of the relationships between the child and the Custodial and noncustodial parents;
• The impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;
• The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move;
• The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements;
• ANY OTHER FACTORS/FACTS WHICH CLIENT THINKS IS RELEVANT FOR THE COURT EITHER GRANTING – OR DENYING – THE RELOCATION (INCLUDING THE ORIGINAL CUSTODY FACTORS, ESPECIALLY TO THE EXTENT THERE’S BEEN A SUBSTANTIAL CHANGE FROM THE ORIGINAL CUSTODY DETERMINATION).

A: With the increasing cost of housing, many intact couples do not find they have a ton of money left over after paying their mortgage as well as their basic living expenses. When those same couples split up, however, they may be left with less money than is necessary to meet those expenses.

1. Consider selling

While the real estate market is not great right now (2014) for sellers, if the mortgage is otherwise eating you alive, you may have no choice but to sell. Couples often budget a mortgage factored on two incomes coming into 1 household. When the couple goes through a divorce, now they are left with trying to support 2 households - meaning 2 sets of utility bills as well as both payment of the mortgage & payment of rent for one of the parties who's moved out. It's not uncommon for this to leave the parties at the break-even point, or even leave them with less money than is needed to pay all their basic expenses. If this is the case, then the best option is to immediately put the house on the market & salvage what you can of the equity.

2. Get a Co-Signor

The other option - if one party wishes to keep the house but the parties cannot afford to fund 2 households - is for the party wishing to keep the house to get a co-signor on the mortgage. That way, the party giving up his/her rights can get a buy-out from the refinance & go on with his/her life. Making these decisions sooner rather than later in the divorce process will save on attorney's fees as well as preserve equity you've worked so hard to build up in the house.

A: Some people share custody of their child - which means exactly 50%-50% in each household. The issue then becomes whether child support is paid at all - and if so, how much.

1. Is shared custody pursuant to an order - or just informal agreement?

The first analysis is whether the shared custody arrangement is pursuant to court order, or just by a mutual, informal agreement. If it's pursuant to court order, then you can skip to the 2d section below. If it's pursuant to informal agreement, then you're best advised to start keeping track of the days (& even hours of those days) the child is with you. Reason being: if there's a dispute later on about whether you do indeed shared custody, then at least you have something in writing to corroborate same. You should also begin confirming the days you'll have the child with the other parent in writing. As an example, you can send a calendar to the other parent for the next month marking off "M" or "F" on the days to designate which days the child will be with you versus the other parent. In the end, you're best advised to file a petition for shared custody & get the arrangement confirmed via court order.

2. Support based on who makes more - with some exceptions

The prevailing law - however incorrect - holds that in a shared custody situation the parent who makes more is automatically deemed the noncustodial parent & is thus potentially liable for the full guidelines amount (i.e., 17% for 1 child, 25% for 2, etc.). That said, many courts deviate from the presumptive calculation in a shared custody situation & do an off-set: first, then calculate support as if the father is paying the mother support. Then they calculate as if the mother pays the father support. The difference between the two calculations would therefore be the only money changing hands. Bear in mind, however, that merely because court may deviate in a shared custody situation, it certainly doesn’t mean the court is required to do so. Judges are free – after considering all the relevant factors, to award full guidelines child support, or no child support at all (and everything in between).

A: Many potential clients ask whether it's better to merely get a legal separation, or proceed with filing a divorce case. This Guide will explain the basic pros & cons of each.

1. New York has "No-Fault" Divorce now

Prior to October, 2010, one generally needed to make an allegation of fault against his/her spouse in order to get divorced. One common way around that was to do a separation agreement. The law provided that if the parties remained separated pursuant to a Separation Agreement for more than 1 year, then either could file for an uncontested divorce based on the agreement. This indeed was one of the leading reasons why people prior to the law's amendment filed for separation as opposed to divorce. Now that New York passed "No-Fault" Divorce, however, there is no longer any reason to allege fault in order to get divorced - one only needs to state that the marriage has broken down "irretrievably" for more than 6 months.

2. Other reasons for getting a Separation versus a Divorce

Once the parties are divorced, then generally if one is covered by his/her spouse's medical insurance, their insurance will terminate. This is because very few plans cover "ex-spouses." As such, a leading reason why some people still choose to get a legal separation first is to preserve continuity of insurance coverage for at least another year. With the Separation Agreement, the parties can resolve every other issue which would otherwise be brought up in the divorce. The agreement would cut-off accrual of marital assets & debts, and can equitably divide them. The agreement can also provide for custody, visitation, maintenance (i.e., alimony) & child support. The only thing the agreement cannot do is actually terminate the marriage. That takes a divorce proceeding - which either party can file for upon the expiration of 1 year (or later) from the date the agreement is signed.