Matrimonial & Family Law: FAQ

MATRIMONIAL & FAMILY LAW | FAQ


If I move from the marital residence prior to filing for divorce or after a divorce has begun, do I give up my interest in the property?
How does moving from the marital residence affect my custody rights?
How does moving from the marital residence affect my custody rights?
How does moving from the marital residence affect my custody rights?
When does child support TERMINATE?
Does the fact that my spouse cheated affect how much money I receive?
How long does an uncontested divorce take in New York?
Do I have to go to court if I want to get a divorce?
How long do you have to be separated from your spouse before filing for divorce in New York?
What if I cannot locate my spouse?
What is the difference between legal custody and physical custody?
How much do I have to pay in child support?
Can I stop my former spouse from continuing to use my surname after the divorce is finalized?

 

If I move from the marital residence prior to filing for divorce or after a divorce has begun, do I give up my interest in the property?

No. If you move out, your financial interest will not be affected and the court will still determine your share of the home.


How does moving from the marital residence affect my custody rights?

That decision may affect future custody decisions, especially if you are leaving the children in the custody of the other party.


How do I get my spouse to pay my legal fees?

Initially, parties are responsible for paying their own legal fees. However, if your spouse’s income is significantly more than yours, the court may order your spouse to pay for your attorney. You may also seek legal fees if your spouse creates unnecessary court costs.


Does the mother get custody automatically?

No.  There is no presumption that mothers should have custody over fathers.  Courts will make this determination based on what they consider to be in the best interest of the child(ren) based on the totality of the circumstances, irrelevant of gender.


When does child support TERMINATE?

Generally, the obligation to pay child support ends at the age of 21. However, this is not automatic. The parent paying child support should file a termination petition in family court to stop their child support obligation. If your child is in college full time and you are the parent receiving child support, you can petition the court to extend child support until the age of 22.


Does the fact that my spouse cheated affect how much money I receive?

Cheating is not considered by courts when they are deciding financial issues UNLESS marital assets were used to fund the outside relationship. If you can prove that the cheating spouse was spending marital funds on that relationship, there may be an entitlement to recoup the money that was spent.


How long does an uncontested divorce take in New York?

It depends.  Once the final divorce paperwork has been filed with the court, it will be reviewed and signed by a judge, then entered with the clerk of the court before the judgment of divorce is considered finalized. Processing time varies from county to county.


Do I have to go to court if I want to get a divorce?

It depends. If your divorce is uncontested (meaning you and your spouse have nothing to fight over or are able to settle your issue in a written agreement) then you do not have to go to court.  A contested matter requires court involvement.


How long do you have to be separated from your spouse before filing for divorce in New York?

You no longer have to be separated from your spouse to get a divorce. In 2010, New York added a “no fault” divorce ground that allows people to get divorced if they have not been getting along for at least six months. You can still live together immediately prior to filing.


 What if I cannot locate my spouse?

New York state law requires that the defendant in a divorce action be personally served with the papers starting a divorce. To have your spouse served in any other way, you must get permission from the court. This is a lengthy and detailed process.


What is the difference between legal custody and physical custody?

Custody has two parts: legal and physical. Legal custody is the right to make major decisions about your child. This includes where your child goes to school, what kind of religious training a child receives, and whether your child gets surgery or other medical treatments. Physical custody is determined by who the child lives with on a day-to-day basis. A parent with primary physical custody is sometimes called the “custodial parent” or the child’s “primary caretaker.”


How much do I have to pay in child support?

In New York State, the percentages for basic child support are:

  • 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

The amount is based the parent’s combined net income.  Courts may take into consideration other factors presented. A spouse may also be required to pay for child care expenses, educational expenses, and medical expenses in addition to basic child support.


Can I stop my former spouse from continuing to use my surname after the divorce is finalized?

No.  Your former spouse has the right to choose to keep their married name or go back to their maiden name.