Spodek Law Group

Divorce can be an emotional and unsettling event for those couples who choose to end their marriages. The soon-to-be former partners must render critical decisions about several legal and financial matters. One issue that might require resolution is the future of the home the couple resided in while they were married. The following short blog attempts to answer that question.

New York State Regulations
In New York, shared or “community” property a couple might own, such as a home is deemed the legal property of the individual whose name is on the title deed. Therefore, if one spouse or the other is the only name listed on such a legally-binding document, then said individual would be considered the legal owner.
However, should both spouses be listed as owners of the property, the issue is not as clear cut. Should such circumstances arise, a court will typically deem the marital abode as an asset owned by both spouses. In New York, the division of marital assets is executed in accordance the equitable division principle, which means all of a couple’s assets will be distributed as evenly and fairly as possible. It is important to note that equitable does not necessarily guarantee that the split will be fifty percent a side.

In certain instances, the home might need to be sold in order to complete the asset distribution process. A judge will determine the exact asset distribution percentage each former partner will receive after also considering issues like the age and health of each spouse, their current and potentially future incomes, each spouse’s immediate financial requirements and if alimony has been awarded to either spouse.
In other cases, a judge will often decide which spouse is given permission to retain ownership and continue living in the residence. This decision is rendered after contemplating which spouse will retain custody of the couple’s children (if applicable) and the domestic requirements such an arrangement would precipitate.

In all 50 states, divorces must have grounds; however, in many states, courts grant divorces on no-fault grounds. In no-fault divorces, the grounds have nothing to do with the behavior of either spouse, the circumstances of the marriage, or other situations that would show one or both spouses as having engaged in actions that make a divorce permissible. The divorce can be granted on the grounds that the spouses simply cannot get along or are incompatible, for example. The most common no-fault grounds is irreconcilable differences.

Irreconcilable differences are issues that make the marriage untenable for either spouse but are not the fault of either spouse. In this type of divorce, only one spouse needs to cite irreconcilable differences and the divorce can be granted, even if the other spouse disagrees and wants to save the marriage. Irreconcilable differences result from a multitude of issues that can compromise a marriage, such as religion, politics, personality conflicts, child discipline, and finances. Though irreconcilable differences must be cited, the party seeking the divorce does not need to prove the other spouse did something wrong.

At-fault divorces, on the other hand, require proving the other party’s fault. At-fault divorces arise from more concrete issues like domestic violence, adultery, abandonment, cruelty, and bigamy. In at-fault divorces, judges may award more alimony to the wronged spouse, or reduce or eliminate the alimony a wronged spouse must pay. When it comes to dividing property, in most jurisdictions, there is little difference between at-fault and no-fault divorces.

In some states, achieving a no-fault divorce is harder than in others. For example, North Carolina requires the couple to live apart for at least a year, a requirement not present in most other states.

One principal advantage of a no-fault divorce is that the other spouse cannot contest it. The other spouse can contest other aspects of the divorce, such as property division, child custody, and alimony, but the other spouse cannot contest the divorce itself. Another advantage is that the divorce is likely to proceed more quickly and with less expense.

An at-fault divorce is advantageous only if there is evidence of the other spouse’s wrongdoing, such as meeting a lover at a hotel or being addicted to illegal drugs. In that case, a court may award a more advantageous settlement in matters like alimony and child custody. In cases where there is no wrongdoing, no-fault divorces provide a much easier route.

Generally, property is classified as either non marital (separate) or marital property when acquired. In a divorce, most states will not permit the division of non marital property. So what is non marital property? Non marital property has a more narrow definition than that of marital property.

Generally speaking, non marital property is all property acquired before marriage and all property acquired during the marriage via devise, gift, succession or bequest. When property is classified as non marital property, it will continue to be classified as non marital property throughout the marriage.

Furthermore, if a spouse decides to sell a piece of non marital property, the proceeds will continue to be non marital property if the proceeds are clearly traceable to the non marital property. Other property acquired with money that was non marital property will also be classified as non marital property.

If non marital funds and martial funds are commingled in the same account, then these funds will be considered marital property and no longer non marital property.

The classification of income from separate property as either marital or non marital property differs from state to state. In community property states, which exist in nine states today, all income from separate property will be classified as non martial property except in Idaho, Louisiana, and Texas. Courts in states that have adopted the Uniform Marriage and Divorce Act hold that income from separate property is marital property.

As for non marital investment properties or an increase in value to non marital properties, this increase in value will constitute non marital property. However, if the property increases in value due to the contribution of funds by both spouses, then this will be considered marital property, rather than separate property. This rule often applies to real estate and stocks.

Therefore, it is important to distinguish income from appreciation. Appreciation in value due to the spouses efforts will be considered marital property whereas income is generally viewed as non marital property.

Each state differs in their divorce laws regarding jurisdiction and who is eligible in order to file a divorce in that state. New York is no different and requires certain requirements in order to be able to file for divorce in New York. This is in order to protect New York’s own interests and make sure that the correct state’s laws are applied to your case correctly.

The basic notion of these residency requirement laws is that you are required to be a resident of New York for a certain period of time. If you and your spouse are residents of California, but believe New York’s divorce laws are more preferable to your situation, you would not meet the residency requirements and would not be able to file for divorce in New York.

In order for a Court in New York to accept a divorce case, the case must meet the residency requirements. If you and your spouse do not meet these strict requirements, the New York courts will not be able to hear the case and they will be unable to issue a divorce between you and your spouses.

According to the Consolidated Laws of New York, Article 13, Sections 230, if any of the following five scenarios have occurred, then you have fulfilled the filing requirements for New York:

1) The spouses were married in New York and either spouse is a resident of New York when the divorce action starts and has been a resident for at least one year immediately preceding the divorce action;

2) Both parties have resided in New York as husband and wife and either party is a resident of New York when the action started and has been a resident for at least one year immediately preceding the action;

3) The cause of action occurred in New York and either party has been continuously a resident of New York for a period of at least one year immediately before the start of the divorce action;

4) The cause of action occurred in New York and both parties are residents at that time of the commencement of the action;

5) Either party has been continuously a resident of New York for a period of at least two years prior to the commencement of the action.

N.Y. Dom. Rel. Law § 230 (McKinney).

The New York residency requirements are very strict, so make sure that you do qualify. The living period requires continuous living in the state.

Before New York laws divided marital property via manner of equitable distribution, New York laws divided marital property under the concept of “community property.”

In a community property state, the judge merely separates the marital property directly in half. The judges do not have to consider fairness, employment, age, health, or any other factors of the party. Therefore, it makes for a very quick division of the marital property.

In deciding alimony and child support in community property states, a judge can still consider factors regarding each spouse’s employment, age, health, length and duration of the marriage. Therefore, if the state has community property with equal division of the property, it does not mean that the alimony will be equal or non-existent.

Marital property divided by the community property rules only exists in nine states today. They are most common in Western States. These include larger states of California and Texas, as well as, Arizona, Idaho, Louisiana, New Mexico, Nevada, Washington and Wisconsin.

Equitable Distribution
Equitable distribution is the set of rules that the rest of the United States uses, including New York. Equitable distribution requires the court to divide the marital property equitably, but this does not necessarily mean equally. Rather, the Court will take into consideration many different factors and weigh these factors as to how much each party should receive. Therefore, a lot of power is vested in the judge in order to divide the marital assets.

Some of the factors that the Court will consider is the ability of a spouse to support him or herself, if one spouse sacrificed for the other spouse throughout the marriage, the length and duration of the marriage, the age and health of the parties. Courts will even look at the professional licenses and vocational training earned by a spouse. Thus, if a marriage is short, a judge will be reluctant to give a spouse’s income to the other spouse. However, if one spouse worked to allow the other spouse to go to law school and the spouse is now a lawyer, a judge may reward the working spouse with assets to rehabilitate her sacrifice.

Equitable distribution will only divide marital property, not separate property. Separate property is any property acquired before the marriage or during the marriage by gift, descent, or devise, as well as property subject to a prenuptial agreement.

Getting a divorce can be a difficult situation. One of the most challenging aspects of a divorce is the property and assets that a married couple has accumulated. Figuring out what belongs to one spouse and what belongs to another is difficult. Therefore, it is important to understand what marital property is and how it works during a divorce.

What is marital property?
In the most common sense definition of marital property, it is all of the property acquired by a couple during the course of their marriage. Many people do not realize that all property acquired is considered marital property. This will include the house, furniture, and appliances that may have been acquired during this time. Not only does marital property include real property, but it also includes any financial assets acquired. For example, if the couple opened bank accounts or invested in certain stocks, then this is considered marital property. Additionally, if the couple accumulated debt during the marriage, this will be considered marital property as well.

What is non-marital property?
While marital property is any property acquired by the couple during their marriage, non-marital property includes any property that the individuals owned prior to their marriage. Other examples of non-marital property includes property given to the individual as a gift. If an individual received property as a gift, then it does not have to be shared with the other spouse. This also includes any items that may have been inherited.

How is marital property divided?
Depending on the state’s laws, marital property can be divided different ways. The most common way is that everything is split in an equitable manner between the two spouses. It is important to remember that equitable does not always mean evenly. In most cases, the judge will determined what he or she feels is fair and equitable. Some of the things that the judge may consider could include who was at fault for the divorce, who will have custody of the kids, and which spouse earns the most money.

It is important to understand marital property if you are in the process of getting a divorce. Marital property is one of the reasons that divorce proceedings can last for months or years. Having a clear understanding of this term prior to your divorce will allow you to have a better understanding of what to expect.

Every year, thousands of couples across the United States go through the motions of a divorce. While divorce provides finality at the end of a relationship, some couples aren’t ready for that step. The following guide explores what happens to marital assets if a divorce isn’t possible.

There are many reasons that an unhappy couple may delay getting a divorce. If a couple has children, they may want to wait until the children are 18 before filing for divorce. There can also be other financial considerations that may impact the viability of a divorce. For example, if one spouse is reliant on the health insurance of another spouse for a critical health issue, the couple may agree to stay married so that spouse can continue to receive insurance benefits.

If a couple chooses to separate without divorce, there’s usually no need to involve the court system. However, there are legal steps that a couple can take to divide marital assets.

An arbitrator is a neutral third party that can help mediate division of assets during a non-divorce separation. Arbitrators are usually attorneys that represent one or both parties in a legal dispute. During a separation, an arbitrator can help ensure that both parties receive equitable shares of marital assets.

Bank accounts and debts should be divided first as part of a non-divorce separation. If a couple has a joint checking or saving account, the funds in those accounts should be divided equally between spouses. Each spouse should then open their own checking or saving account. It’s also important to split any debts between the couple. Many credit cards allow balance transfers from one card to another.

Houses can be more difficult to split during a non-divorce separation. If there is a mortgage on the home, one spouse can consider buying out the equity value of a home from the other spouse. If this isn’t possible, it may be necessary to sell a home and then split the cash proceeds from the sale.

Investment and retirement accounts can usually be split without consequences. However, it’s important to make sure that you know the terms and conditions of a retirement account before closing it. For example, there can be a significant tax penalty if a couple closes a joint 401k account before maturity.

If you have any questions or concerns about a non-divorce separation, it’s a good idea to contact an attorney as soon as possible.

Unfortunately, a common problem for someone seeking a divorce is when their spouse cannot be located. The question then becomes not if you can divorce, but how do you do it.

Divorce laws vary by state. If you cannot afford a divorce lawyer, check the yellow pages for lawyers that will give you a free consultation. You can also obtain legal help through your local Legal Aid Society.

The procedure for divorcing a missing spouse is basically the same from state to state. First of all, make every effort to locate your spouse. Call friends and relatives. File a missing person report. If they are in the military, check with their branch of the service. Check with their last known employer. Document every call you make. Who did you speak with? When? What was their response.

Check with the court or a lawyer on how to effect service by publication. If you have some idea of their last known location or have a fairly good idea of where they would be currently living, you can file a publication notice in the newspapers serving that location. Keep a record and copy of the notice as publicized, the name of the newspaper, and the dates of publication.

Depending on the state, you may be able to arrange a hearing before a judge on your own with the Clerk of the Court. Otherwise, take this information to an attorney. The more groundwork and research you can do on your own, the easier it is to use an attorney and minimize attorney billing. Assuming your spouse does not show up for the publicized divorce hearing, most divorces are granted as either uncontested or granted by default.

Issues such as child support and property settlement might be left open. However, having the divorce granted will solve many legal problems for you. Always check with your state for local requirements. See basic advice through Legal Aid or an attorney. A divorce in the case of an absent spouse can be time-consuming and costly. The more work you can do on your own behalf will lower your overall legal bill.

Getting a divorce is often one of the most challenging experiences a couple faces. However, children bear a significant burden during the divorce process too. Spouses in a relationship often want custody of children for themselves, which can lead to conflicts. The following guide explores how child custody is determined in the United States.

Child custody proceedings are usually handled in a family court; however, this can vary based on state. Family courts will assign custody based on the best interests of a child. Courts use a variety of facts to determine custody. These include the working status of parents, the type of home, and a history of who served as the primary caregiver for a family.

For example, imagine that a couple with children decide to get a divorce. The mother has served as the primary caregiver for the children. She takes them to school, prepares them meals, and helps to transport them to many after-school activities. The father served as the primary breadwinner for the family, but he did not directly care for the children on weekdays.

In this situation, it’s likely that the court will award custody of the children to the mother on weekdays and the father on weekends. Since the mother did not have a job and served primarily as a homemaker, she would be entitled to receive child support from the father. These child support payments would be made by the father directly to the court. The court would then transfer them to the mother.

While family courts often assign primary custody to the mother, the father may also receive primary custody in some situations. If the father has served as the primary homemaker in a relationship, he may receive primary custody of any children. If the mother served as the primary breadwinner of the family, she would be required to pay child support to the father. While this isn’t common, this scenario is happening more often as more women pursue professional, high-paying careers.

Custody hearings only happen if parents can’t agree among themselves on what is best for their children. If parents can come to an equitable arrangement regarding custody on their own, it’s usually possible to avoid family court. Child support payments may not be required if parents can find a financial arrangement that works best for them. If you have any concerns about children and divorce proceedings, it’s important to contact an attorney as soon as possible.

Below are some reason to hire an NYC family law attorney. Many family lawyers represent clients in things like divorce, and other tangential issues which arise due to divorce proceedings. Family law is a really broad practice area, and includes things like foster care, etc. Here are some common reasons to hire an NYC family court lawyer:

Divorce: Each spouse hires his, or her, own attorney, who helps negotiate a settlement plan in order to avoid trial. Family court attorneys can help spouses divided marital property, determine spousal support, propose a child custody plan of action, visitation rights, and alimony if applicable.

Child Custody + Support: Family Court attorneys in NYC can help create court orders and settlement agreements that cover custody and support. These are part of a larger divorce case, and are revisited as your conditions change.

Paternity: Paternity cases can be filed by a mother in an effort to get child support payments from a father who is absent. Sometimes, biological fathers file for paternity in order to have  relationship with their child.

Adoption: Adoption is a complex issue which differs depending on the type of adoption, where the child is from, and other factors. Family court attorneys can help with this process.

Family law deals with all types of issues related to your family and domestic issues. Most family law attorneys focus on clients in divorces, and issues, related to divorce – like marital property, child custody, child support, and alimony after divorce. Family law lawyers can also help with things like prenuptials, postnuptials, and other matters. Some family NYC family court lawyers will represent either victims, or perpetrators, of domestic violence cases.

Other areas of practice that NYC family court attorneys can handle include: adoption, guardianship, child abuse and neglect. Family law handles with all types of legal issues involving family relationships, like adoption, divorce, and child custody. Attorneys who practice family law handle all items related to family law, whether it be divorce, child custody, or other matters. Some NYC family court lawyers specialize in things like adoption, emancipation, or other matters not related to divorce.