NY Divorce: Tips On Overcoming Challenges

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 27, 2020

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Couples who seek a divorce in New York are likely to face many challenges that they simply don’t understand – and at a time when emotions run high. The grounds for divorce, distributing assets, dividing debts, child custody, visitation and estate planning are only a few the issues that go along with most divorces. Here are some tips on overcoming those challenges:

What challenges are New York couples likely to face when seeking a divorce?

That’s the question we asked Elliot Schlissel, a New York Attorney whose practice area includes divorce, estate planning and many others. Having practiced this area of law for over 30 years, he’s seen it all. He told us that, “A marriage is a social and economic partnership. Very often when people decide to get divorced, they take this action because the social part of their relationship is not working.” He provided the following information and tips on how to overcome the many challenges that are likely to arise in the process:

Determine the grounds for divorce. The first issue is to determine the grounds for divorce. One party has to sue the other party on either a fault issue or work out the terms of a separation agreement. The four recognized grounds for a New York divorce are:

  1. living separate and apart under a written separation agreement for a period of one year or more;
  2. cruel, inhuman treatment, which has two sub-categories, a) mental cruelty or b) physical cruelty;
  3. abandonment or sexual abandonment for one year; or
  4. adultery.

Know how custody, visitation and child support work. Although an attorney is best able to handle these issues, it’s important to understand how each work in general terms.

Child Custody. The standard in New York is to determine what is in the child’s best interest. Courts look into who is the primary nurturing parent; who spends more time with the children; who deals with the children’s needs; who goes to parent-teacher conferences; who takes the children to the doctor; who buys the children clothes; who makes them breakfast, lunch and dinner; who sees that their homework is done, etc. For additional information on custody in New York, please click here.

Visitation. The typical visitation schedule for a parent who does not have primary custody of a child in New York is normally every other weekend and every other holiday. This includes all school holidays, school recesses such as Thanksgiving, Christmas and Spring break/Easter vacation. The nonresidential custodial parent usually obtains parenting time (visitation) with the children from two to four weeks each year when he or she is off from work. For additional information on visitation in New York, please click here.

Child support. There is a federal statute called the Child Support Standards Act which has been adopted in all 50 states. This lays out a scheme for the non-custodial parent to pay child support to the residential custodial parent. The breakdown of child support is as follows:

  • 17% gross wages less FICA for one child;
  • 25% gross wages less FICA for two children;
  • 29% gross wages less FICA for three children;
  • 31% gross wages less FICA for four children;
  • No less than 35% gross wages less FICA for five children or more.

For additional information on child support in New York, please click here.

Ascertain your financial situation. Equitable distribution of marital assets and the division of debt can be extremely challenging – especially for people trying to maintain the same standard of living while living in separate households. This is difficult to do. Before moving forward with a divorce, each party should try to ascertain what it is going to cost them to live, what their expenses are going to be for rent, utilities, food, cars and other living expenses.

Avoid online divorce kits. I have recently been involved in cases where individuals have been using divorce kits they have obtained on the Internet and paralegal document drafting services to obtain divorces. Unfortunately, I have seen several cases where people have tried to use these do it yourself divorces that have created horrendous situations wherein individuals have lost custody of their children because they did not fully understand what they were doing.

I analogize handling the divorce through a divorce kit to performing brain surgery on yourself. Many people who have used these divorce kits from the internet end up in disastrous situations and they literally spend thousands of dollars hiring lawyers to straighten out the problems that are created.

Don’t give up your rights to assets. I have seen individuals giving up very valuable rights to pensions and 401k’s worth hundreds of thousands of dollars because they didn’t understand that they were entitled to an equitable distribution share in these valuable assets.

Consult with an attorney. If you have a simple family situation a divorce can very often be worked out fairly and in inexpensively by hiring an experienced New York divorce attorney.

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