Frequently Asked Questions About Divorce

Common Divorce & Separation Questions

Where do I go to for a divorce?

Divorce cases in New York State are handled by the Supreme Court, not, as many people understandably believe, in Family Court. Family Court can, however, assist you with issues regarding Child Support, Child Custody, Child Visitation, and Spousal Support or Maintenance AFTER your divorce.

Both Nassau County and Suffolk County on Long Island each have their own Supreme Court and you should file your divorce case in the county of your residence. For more information on Nassau County and Suffolk County Supreme Court visit the New York State Unified Court System website at http://nycourts.gov/

How do I start a divorce case?

To initiate your divorce proceedings you will need to visit the Nassau County or Suffolk County Clerk’s Office to file a Summons with Notice or Summons and Verified Complaint. This document states the reasons, or grounds, for the divorce. This document will need to be “served” to your spouse by another person (not you) over the age of 18. More information of filing fees and other requirements are available from the respective County Clerk’s websites.

In Nassau County: http://www.nassaucountyny.gov/agencies/Clerk/ClerkServices/vitalrecords.html

In Suffolk County: http://www.suffolkcountyny.gov/Departments/CountyClerk/CourtActionsandCourtMinutes/SeparationAgreementsDivorceDecrees.aspx

What is an annulment?

An Annulment is very different than a Divorce. While a divorce ends a legal marriage, an annulment rules that the marriage is not legal. Because of this, the grounds for an annulment are very different than those for a divorce.

Grounds for an Annulment include:

  • Bigamy, or being married to someone else at the time of the marriage.
  • Inability to consummate the marriage through sexual intercourse.
  • Incurable Insanity for a period of at least five years after the marriage.
  • Mental Incapacity that prevented a spouse from understanding the nature, effect and consequences of the marriage.
  • Duress or force to marry.
  • The most common ground for a legal annulment is Fraud. Fraud in this case is defined as obtaining consent for the marriage by deceiving the other person.

Legal Annulments are not nearly as common as divorces and therefore the courts in New York State do not have standard forms to apply for an Annulment. In order to obtain an annulment you should consider consulting with a lawyer who is familiar with New York Domestic Relations Law §140. The Divorce and Family Law firm of Robert E. Hornberger, P.C. is very familiar with this law and will be happy to provide you with a complimentary consultation to discuss your case. Give us a call at 631-923-1910 or fill out the short form on this page to schedule your free consultation.

How long does it take to get a divorce?

This is not an easy question to answer. Some divorce cases can be completed in as little as 90 days, while others can take years to resolve. It really all depends upon how complex your individual case is and how willing you and your spouse are to negotiate and agree on the terms of your divorce. There are many complex issues of financial and property division, child rearing and support, custody and visitation, and even the grounds for divorce, which can become stumbling blocks to a quick divorce. The only way to know for sure is to meet with an experienced divorce attorney who knows the questions to ask to reveal the complexity of the case and advise you on the best way to move forward with your divorce. The Divorce and Family Law Firm of Robert E. Hornberger is pleased to offer a free initial consultation to discuss your case, your options and determine the best way for you to move forward. Give us a call at 631-923-1910 or fill out the short form to schedule your free consultation.

Do I need a lawyer to get a divorce?

In most cases, yes. Even in Uncontested Divorce cases, the law surrounding divorce can be very complicated and not addressing one simple thing can delay your divorce or present further issues many years down the road. Divorce involves many complex financial, property and parenting issues with which an experience attorney can help you. Even if you believe you have resolved all these issues with your spouse, a divorce lawyer can help you prepare the forms required to apply and finalize your divorce.

There are many different types of divorce. While Litigation of a Contested Divorce may be the most common (and typically expensive), Collaborative Divorce and Divorce Mediation can be practical Alternative Dispute Resolution solutions, particularly when you and your spouse have an amicable relationship and believe you can work out your differences between you. These divorce methodologies keep you out of court and can often save you time and money and reduce the stress involved in a litigated divorce. They can also improve your ongoing relationship with your spouse and both of your relationships with your children post-divorce.

What if I cannot locate my spouse?

In order to initiate a Divorce proceeding in  Long Island, NY, the defendant, your spouse, normally must be personally “served” with a Summons with Notice or Summons and Verified Complaint, a legal document created when you file your legal action. When this is not possible, you can apply for permission from the New York State Supreme Court by filing an Application for Alternate Service in either Nassau County or Suffolk County, wherever you initially filed your Divorce case. These applications will incur additional filing fees and publication charges.

How can I get a divorce using a separation agreement?

A Legal Separation Agreement is often a first step on the road to a legal Divorce. The agreement is a contract between the husband and wife that outlines the division of the critical aspects of the couple’s life together. These items can include the care and custody of children between them, property and financial assets, and much more.

After signing a Legal Separation Agreement, a couple must live separate and apart from each other for at least a year before moving to Divorce proceedings. There are a number of specific legal and technical requirements that must be followed in creating a Legal Separation Agreement in order for it to be used as the basis for a Divorce proceeding. Errors or omissions in a Separation Agreement can create difficulties and struggles when a couple later desires to move on to finalize their Divorce so it is recommended that you enlist the services of an experienced divorce attorney, collaborative lawyer or divorce mediator when drafting your legal separation agreement.

What is a divorce?

In New York, a divorce is the legal dissolution of a marriage by the Supreme Court of the state of New York. Divorce is often called a Matrimonial Action by attorneys and other New York State court staff. As in any legal action, the person who initiates the proceedings is known as the Plaintiff while the entity on the other side is known as the Defendant.

Common Child Custody & Support Questions

What is child custody?

Also referred to as Parenting, Child Custody is the parent’s legal right to direct and control their child’s upbringing. Each parent has the legal right to request Custody and Visitation of their child/children during divorce proceedings. The parent who is not awarded legal Custody may still be entitled to Child Visitation to enable them to spend time with their child

What is the difference between Legal Custody and Physical Custody?

Legal Custody is the right to make significant life decisions for your child, including schooling, religious training, medical care, etc.

Physical Custody is where the child lives on a day to day basis. The parent with primary Physical Custody is often called the child’s Custodial Parent or Primary Caretaker.

How will a judge decide child custody?

New York State courts consider the best interests of the children when making any decisions regarding child custody and visitation. Judges may consider any and all of the following:

  • The child/children’s primary caretaker up until now
  • The home environment of each spouse/parent
  • The “fitness” of each parent to be a stable caregiver (home life, lifestyle, judgment, employment, mental health, physical health, etc.)
  • Current and length of residence of the child/children
  • Ability of the parent to provide the child with intellectual and emotional support
  • Proven ability to provide the other parent with access to the child. In other words, does the parent try to keep the other parent out of the child’s life.
  • The desires of the child
  • Separation from the child’s brothers and sisters, if any
  • Any patterns of child abuse by either parent
  • Any history of domestic violence issues

What is Child Support?

Child Support is money provided by a non-custodial parent to the custodial parent for children under the age of 21. In New York, Child Support payments are based upon a formula called the Child Support Standards Act (see How Does a Court Calculate Child Support below). Child Support payments can be awarded in Supreme Court during divorce proceedings or in Family Court as part of a Child Support proceeding (see the section on Family Court FAQs). More information on Child Support can be found on our blog.

How does a court calculate child support?

New York State courts use a number of criteria in determining fair child support payments, including:

Each parent’s net income, not including FICA, NYC or Yonkers income tax, spousal maintenance or support, and child support payments for other children.

The court adds each parent’s net income together and multiplies is by a percentage dependent upon the number of their children, as follows:

  • 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

If the parent’s combined income is $136,000 or lower, this number is then divided based upon the proportion of each parent’s net income to the combined income of both parents.

If the parents’ combined income exceeds $136,000, the court can then decide whether to apply the same formula to the income above $136,000.

Spouses may also be required to pay for other child care, education and medical expenses for the children in addition to the basic child support obligation.

Find more information on Child Support here.

Common Financial, Child & Spousal Support Questions

What happens if I don’t have enough money to pay for an attorney?

New York State Domestic Relations Law can require the spouse with the larger income to pay some or all of the legal fees of other spouse when there is a large disparity between the spouse’s incomes.

How does a court calculate child support?

New York State courts use a number of criteria in determining fair child support payments, including:

Each parent’s net income, not including FICA, NYC or Yonkers income tax, spousal maintenance or support, and child support payments for other children.

The court adds each parent’s net income together and multiplies is by a percentage dependent upon the number of their children, as follows:

  • 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

If the parent’s combined income is $136,000 or lower, this number is then divided based upon the proportion of each parent’s net income to the combined income of both parents.

If the parents’ combined income exceeds $136,000, the court can then decide whether to apply the same formula to the income above $136,000.

Spouses may also be required to pay for other child care, education and medical expenses for the children in addition to the basic child support obligation.

Find more information on Child Support here.

What is the Equitable Distribution Law?

New York courts consider marriage to be both a social relationship and an economic one and the state’s Equitable Distribution Law attempts to recognize this by requiring judges to divide a couple’s property fairly.

The law recognizes a married couple’s property as either Marital Property or Separate Property. Marital Property is divided equitably between the spouses.

Marital Property is any and all property the spouses purchased during the marriage, no matter who did the actual purchasing or whose name is on the property (as in the case of a automobile), unless the property is obtained during the marriage as the result of a gift, an inheritance, for the compensation for a personal injury, or, in exchange for the spouse’s separate property. Even pension or other retirement plans are considered marital property by the courts.

Separate Property is considered any and all property a spouse owned before the marriage. Separate property can also include inheritances, gifts (other than those given by the other spouse) and personal injury payments “earned” during the marriage.

According to Domestic relations law § 236(B)(5)(d), the courts must consider a number of factors in making decisions regarding marital property:

  • Each spouse’s income and property when they were married and when they started their divorce proceedings.
  • The length of the marriage and the age of the respective spouses.
  • The needs of the spouse with custody of the children to own or occupy the marital residence and its household effects.
  • The loss of pension, health insurance benefits or inheritance rights upon dissolution of the marriage.
  • Any Spousal Maintenance awarded by the courts.
  • Claims, interest or contributions made in acquiring marital property not in their name.
  • The career potential of each spouse.
  • The liquidity of the marital property.
  • The Likely financial future circumstances of each spouse.
  • The difficulty or impossibility of evaluating of businesses, business assets and interest and the desire to maintain that business free from interference or claims by the other spouse.
  • Tax consequences to each spouse.
  • Actions taken by either spouse which are considered wasteful of the marital assets or property.
  • The courts will also take into consideration other factors and situations that are unique to the case in order to determine a resolution that is just and proper to each spouse.

Can I get spousal maintenance?

Spousal support or spousal maintenance, or what used to be called alimony, are payments made by one spouse to the other. Spousal maintenance or support is intended to assist a spouse who, for any number of reasons, does not have the same earning capacity as the other. It is intended either to rehabilitate the lesser income earning spouse so that the spouse can reenter the workforce, or, to maintain the standard of living each spouse was accustomed to during the marriage. Spousal maintenance can be ordered by the Court during the course of the divorce proceedings, called Temporary Spousal Maintenance, to ensure the spouse with no or less income can meet their financial needs. In 2010, New York State passed a law that provides guidelines for the courts to use when determining spousal support amounts.

More information regarding issues surrounding Spousal Support can be found in a number of articles on our blog or use the Search box at the top left of this page and search for Spousal Support. For a free consultation regarding your spousal support, spousal maintenance or alimony needs, please give the Law Office of Robert E. Hornberger a call at 631-923-1910. We’ll be happy to help.

Common Family Court & Domestic Violence Questions

What types of cases that are related to divorce can be heard in Family Court?

The Family Courts in New York involve issues of child abuse and neglect (child protection), adoption, child custody and visitation, support, domestic violence, guardianship, juvenile delinquency, paternity, and persons in need of supervision (PINS).

There is often some confusion over issues of Child and Spousal Support and whether they should be heard in Family Court or Supreme Court (where Divorce cases are heard). If you are divorced and are looking for a new spousal support order, your case should be directed to the Supreme Court. If, however, you are seeking a modification of an existing support order, you can approach the Family Court. If you are currently involved in a divorce case with your spouse that is not yet resolved, your issues of Support should be addressed to the Supreme Court with the other issues of your Divorce. More information on Family Law is available on our Family Law on Long Island NY  page.

What if I am a victim of domestic violence?

Domestic violence is a growing problem on Long Island and around the world. All too often, instances of domestic abuse, spousal abuse, family violence and battering go unreported due to fear, embarrassment, or other complex issues. Domestic abuse can take many forms and does not always include physical abuse. Domestic violence can include psychological and emotional abuse, controlling or domineering behavior, intimidation, stalking, intimidation or even neglect. It doesn’t have to, and shouldn’t, be this way. If you or someone you know is a victim of domestic abuse, you need to get help right away. You don’t have to face this alone. We can help you obtain an Order of Protection against your abuser. You need to protect yourself and your family. If you need help or legal guidance please contact our office for a free consultation at (631) 923-1910. Other Domestic Violence resources are available here.

Robert E. Hornberger, Esq., P.C., 445 Broadhollow Road, Suite 205, Melville, New York 11747 | 631.923.1910
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