COMMON DIVORCE QUESTIONS
What are the residency requirements for a New York Divorce?
Pursuant to the Domestic Relations Law of New York an annulment, divorce or separation may be maintained only when:
- The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- 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, or
- The cause of action occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
- Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
How do you start an action for divorce or separation in New York?
An action for divorce, separation or annulment begins by filing a Summons in the Supreme Court of the State of New York. Thereafter, the Summons must be served on your spouse.
What happens after my spouse is served with the summons?
Your spouse has 20 days to serve a “notice of appearance” upon you (or your attorney). This means that your spouse appears in the divorce action. Thereafter, you have 20 days to serve your verified complaint upon your spouse. If there is no response to the Summons, the defendant is in default and you may proceed with an uncontested divorce.
Thereafter, your spouse has 20 days to serve his or her answer to your complaint. The Answer may also contain counterclaims against you. This means that you are involved in a contested divorce.
What are the grounds for a New York divorce?
There are seven grounds for divorce in New York State:
- Cruel and inhuman treatment;
- Abandonment for at least one year;
- Imprisonment for three or more years;
- Living apart pursuant to a judicial separation for one year or more;
- Living apart pursuant to a written separation agreement for one year or more; and
- Irretrievable breakdown of the marriage for a period of at least six months.
How long will it take to get divorced in New York?
A simple uncontested divorce can be completed New York within six to eight weeks. A complex contested divorce action, involving contested custody, support, valuation and property issues can take significantly longer though the court will set a schedule so that there is a realistic time schedule.
I would like to go back to using my maiden name after my divorce. How do I go about it?
We provide this service as well. We will fill out all of the necessary paperwork and file all of the documents in court for you.
What if I am not sure whether my spouse will contest the divorce?
We can start the process for you as an uncontested divorce. Therafter, if it becomes contested Keil & Siegel, L.L.P. will instruct you on the subsequent steps necessary to complete the divorce process Our clients appreciate that we attempt to resolve all cases out of court and for the lowest fees possible.
What if my spouse will not sign the papers?
You can still get an uncontested divorce (unless there are minor children in which case you require a child support agreement or Family Court order). Your spouse will be served with the papers and then after the 40 day New York State “waiting period” we will proceed with a divorce by default.
Do I need to appear in court?
NO! We can get it all done for you. We prepare all of the papers, and file everything with the court. Should you wish to meet with us, we will do so at a time and place convenient for you. We appreciate your schedule and can meet with you on evenings and weekends as well.
Will Keil & Siegel, LLP represent both me and my spouse?
We will represent only one party to the divorce. However, you can still obtain a divorce if only one party has an attorney and the other does not. In the case of a mediation, both parties will be represented by our office in completing a comprehensive mediation agreement.
I don’t know where to locate my spouse? Can I still file for a divorce?
Yes. on your behalf, we will requestservice of the divorce action by substituted service. It must be proven that the location of your spouse cannot be be ascertained despite due diligence. Substituted service can include service on a member of your spouse’s family or service by publication in a newspaper.
CHILD SUPPORT/ CUSTODY
How and when is child support determined?
A custodial parent is entitled to child support in accordance with the Child Support Standards Act (CSSA). Child support is paid by the non-custodial parent to the custodial parent and is computed by a formulaic calculation mandated by New York State law. Child support payments are to be paid until a child is emancipated.
Joint custody does not necessarily result in an equal sharing of the child support burden, even when the parents equally divide their custodial time. The determination of child support is based upon the statutory percentages. However, the determination of what is or is not income, the opportunity to cap basic child support at a statutory $136,000 joint income level, and the division of add-on expenses are often complex issues that require a careful analysis of each child’s best interest and the family’s economic situation.
What are the child support percentages pursuant to the CSSA?
Once arriving at the combined parental income (up to $136,000), the sum is multiplied by the appropriate “child support percentage.” The “child support percentage” is defined as:
- 17% of the combined parental income for one child;
- 25% of the combined parental income for two children;
- 29% of the combined parental income for three children;
- 31% of the combined parental income for four children; and
- No more than 35% of the combined parental income for five or more children.
A court will also consider “add-ons” for medical expenses, child care and education where applicable.
How is child custody determined?
There is not one single factor that is used to determine custody. The overall facts and circumstances governs the determination of what is in the best interests of the child(ren). This analysis requires that consideration be given to many factors, including but not limited to:
- The effect of a separation of siblings;
- The wishes of the child, if of sufficient age;
- The length of time the present custody arrangement has continued;
- Abduction or abandonment of the child or other defiance of legal process;
- The relative stability of the respective parents;
- The care and affection shown to the child by the parents;
- The atmosphere in the homes;
- The ability and availability of the parents;
- The morality of the parents;
- The prospective educational probabilities;
- The possible effect of a custodial change on the children;
- The financial standing of the parents; and
- The parents’ past conduct.
What happens if one parent wants to relocate outside of New York with a child? How does this affect custody?
If parents cannot reach an agreement on relocation, a court will permit or deny a request to relocate based on the best interests of the child and all of the facts and circumstances of the matter.