Frequently Asked Questions
Q: Can a divorce agreement be modified in New York?
A: Yes, however, in order to change the terms of your divorce agreement after it has been finalized, you will likely need to ask the court for a modification and be prepared to justify your request. That usually means being ready to prove that you have experienced a substantial change in your circumstances and having enough evidence to back up your request, as simply being unhappy with the outcome of your divorce is usually not a valid reason for a judge to agree to make any modifications to the original decree.
Q: Is New York a community property state?
A: No, New York is not a community property state when it comes to asset division during a divorce. Rather than following community property rules or dividing assets 50/50, marital assets are distributed following the state’s equitable distribution laws. In other words, the court will decide how marital assets will be divided in a fair and equitable manner, and usually, each spouse will end up with a percentage of the marital property. Likewise, it is important to remember that debts and liabilities accrued during the marriage will also be divided in a similar manner, making each spouse responsible for repaying their share of marital debt.
Q: Who gets the house in a divorce in New York?
A: The same equitable distribution laws apply to decisions concerning which spouse will keep the ownership of the marital home. In many cases, it is observed that the spouse who retains physical custody of the children is most likely awarded ownership of the house, but each case is unique and can result in different outcomes. However, if the home is considered separate property, it is not included in the division of marital assets and will remain with its original owner.
Q: How is child support calculated in New York?
In most cases, child support payments are calculated based on both parents’ total annual income, taking into consideration how many children need to be supported. Then, a percentage of the parents’ net income is allocated for child support. The percentage starts at 17% for one child, up to at least 35% for five or more children. If the parents’ total net income falls above the threshold used to calculate most child support payments, the court may determine higher amounts if they decide that doing so would be in the best interest of the child.
Q: Does New York have alimony?
A: In New York, a spouse may request alimony or spousal maintenance payments to support themselves during a divorce and/or after the divorce is finalized. Not everyone qualifies to receive alimony, and those seeking to receive financial support from the other spouse should be ready to support their request with evidence explaining why the support payments are needed. Alimony payments are made by the higher-earning spouse and are meant to cover the basic living necessities of the other spouse until that person can have the means to earn their own income independently.
Q: How can I get sole custody of my kids?
A: As in many other states, family courts in the state of New York give preference to custody arrangements that enable both parents to remain involved with raising the child, sharing responsibilities, and parental rights, making joint custody a more likely outcome of many divorce cases. However, if you believe joint custody is not working in the best interests of your child, you must be prepared to show the court that allowing a joint custody arrangement will not benefit the child. Working with a skilled custody attorney is essential if you are seeking to get sole custody of your children.
Q: What should I do if my ex is not respecting court orders?
A: Once a divorce is finalized, both parties receive orders regarding custody and support of their children, such as child support and parenting schedules. Those orders should be respected, and there are usually consequences for the party that chooses to ignore a court order. For example, failing to make timely child support payments can result in a variety of penalties, ranging from wage garnishments to criminal charges. If your ex-spouse is not respecting court orders, you may request the court for help enforcing the orders, and your ex-spouse could be considered to be in contempt of court. Each case is unique, so the best strategy is to speak to a Suffolk county divorce attorney to find out how you should proceed.
Q: Does New York favor mothers in custody cases?
A: Decades ago, family courts in New York would default to viewing the mother as the primary caretaker and the parent who was the most capable of providing children with the nurturing, safe environment they need to thrive. However, courts nowadays prefer to focus on the child’s best interests and make decisions based on what they believe would be best for the child rather than relying on a traditional gender bias. Both the mother and the father have equal rights in custody cases, and custody decisions are not affected by aspects such as gender, race, nationality, religion, and other personal biases.