by Robert E. Hornberger, Esq | Dec 11, 2012
What are the consequences of leaving the home prior to divorce?
As a divorce lawyer and family law attorney on Long Island, one common question I am asked by potential matrimonial clients is: Can I leave the house? While a number of issues come into play, the answer largely depends on two (2) issues
- Grounds for divorce
- Payment of support and/or carrying charges
Grounds for Divorce in New York
In New York, there are seven (7) grounds for divorce:
- Cruel and inhuman treatment
- Abandonment
- Imprisonment
- Adultery
- Living separate and apart pursuant to a separation judgment or decree
- Living separate and apart pursuant to a separation agreement
- Irretrievable breakdown in the marital relationship for a period of at least six months (commonly referred to as “no-fault divorce”).
Abandonment
The question, “Can I leave the house?” involves an Abandonment issue. Abandonment must be for at least one (1) year and typically occurs in one of three (3) ways:
- A spouse actually leaves the marital home and does not return
- A spouse locks the other spouse out of the marital home
- A spouse refuses to have sexual relations with the other spouse.
Time & Timing of Leaving is Important
Accordingly, if the spouse were to leave the marital home, they would be deemed to be “abandoning” the other spouse if their absence from the home were to last for at least one or more years. Of course, the easiest way to avoid creating a ground for divorce of abandonment when leaving the home is to simultaneously file for divorce. In New York, the ground for divorce must have occurred prior to filing for divorce, therefore, if you leave the home and file simultaneously for let’s say, a “no-fault” divorce, then, you will not be deemed to have “abandoned” the other spouse.
Leaving has Support Ramifications
However, if you leave the marital home and you are the “monied” spouse, that is, the spouse who earns a higher income, then, you may become responsible for support to your spouse, children, or both, as well as for the carrying charges of the home, such as the mortgage, taxes, insurance, or rent, etc. If you are the less affluent spouse, then, upon leaving, you may actually be entitled to support from the monied spouse.
Every Case is Unique; Seek Attorney Counsel
The answer to the “Can I leave the house?” question is never as simple as yes or no. Each case is different and carries its own implications. Sometimes, the spouse can simply leave; other times, the spouse is better off staying in the home. To protect your interests, if you are contemplating leaving your spouse you need to meet with a qualified divorce attorney before taking any actions such as leaving the home.
The attorneys at Hornberger Verbitsky, P.C. are here to answer your questions at any time. For a free private consultation about your needs, contact the experienced attorneys at Robert E. Hornberger, PC at 631-923-1910 or fill out the form on this page and we’ll get right back to you.
by Robert E. Hornberger, Esq | Nov 21, 2012
Long Island Divorce Attorney Answers the Common ‘Should I divorce or separate’ Question
As a divorce attorney on Long Island, I am often asked by clients; “should I get separated or just go straight for a divorce?”
The answer of course depends upon the individual client’s situation. For instance, a relatively younger client who has only been married for a few years and has no children may want to proceed straight to a divorce. While I acknowledge that a separation may allow that couple the opportunity to explore whether or not they could work out their issues and stay together or cannot and need to get divorced, as a divorce lawyer, I am obligated to let the client know that continuing the marriage could expose them to some risk. For example, the client may be held responsible to pay the uncovered medical expenses of his or her spouse. Additionally, if that spouse incurs debts for “necessaries,” the client can be held responsible. In a worst case scenario, the client could become liable to support the spouse should the spouse become disabled while prolonging the marriage.
Benefits of Legal Separation
However, there are obvious benefits to a legal separation in lieu of, or prior to formal divorce proceedings. Married, but legally separated persons are entitled to be covered by their spouse’s family medical insurance if their employer provides such coverage. Married persons can also take advantage of certain tax deductions that singles cannot. Also, if the couple is not quite sure whether or not they want to actually divorce, the separation can alleviate certain pressures in the marriage and allow the couple the opportunity to explore counseling and other avenues to save the marriage while resolving matters such as child custody, child visitation and support of the children as well as property distribution and spousal support in the event of a divorce.
Consult with an experienced Divorce Attorney
A potential client considering divorce or separation should have a consultation with a qualified divorce lawyer and family law attorney. At Hornberger Verbitsky, P.C., we handle divorce and separation issues for couples in Nassau County and Suffolk County every day. We are familiar with the ins and outs of the legal process and work hard to protect the rights of our Long Island clients. You can find more information about our divorce and family law practice at https://divorce-longisland.com. Feel free to contact us at 631.923.1910 or by Email at [email protected], will be more than happy to answer your questions.
by admin | May 2, 2012
The State hoped that with the implementation of the No Fault Divorce Law, that couples looking to dissolve their marriage would work harder to concentrate on a child custody financial issues rather than wasting countless hours and the court’s time in heavily litigated battles in a court room. To date, there has been a significant increase of divorce filings filed in Long Island, proving that the strategic move was enabling couples to move forward with their divorce in a more civil matter. Stephen Younger, the head of the New York State Bar Association was quoted after the bill became a law, “By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns.”
The State Assembly passed the law in 2010, eliminating the need for specific grounds for divorce, although this new approach does not apply to all couples. Previously, couples would have to either wait after a 1 year separation, or prove that one of the partners was responsible for acts like cruelty, adultery or abandonment. New York was the last state to adopt irrevocable differences as a reason for divorce. Governor David Paterson was quoted after signing the bill, “Finally, New York has brought its divorce laws into the twenty-first century.”
Under the new law, a spouse can claim that the marriage has “irretrievably” disintegrated, at least 6 months before filing the papers for divorce. A subsequent law, signed at the same time of the No Fault Divorce Law, was set to provide guidelines for issuing temporary maintenance (commonly referred to in the past as alimony). This formula is expected to have revisions made in 2012, as it is simply based on the party’s incomes, without addressing household expenses such as mortgage payments, utilities, etc. which is commonly addressed in a pendent lite motion in a contested divorce.
This formula states that temporary maintenance should be the lesser of the following:
– Thirty percent of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s income.
– Forty percent of their joint income, minus the lower-earning spouse’s income.
Although it is widely agreed upon that this new formula provides consistency, allowing couples entering the No-Fault Divorce process, a greater understanding of what each party will have to pay/receive during the divorce process, it fails to take the length of the marriage into account.
At the end of the day, numbers of couples on Long Island filing for a No Fault Divorce have risen since the enactment of the law in August 2010. Currently, in Nassau County, the number of new cases has increased by 6 percent compared to 2009 before the law went into effect, and in Suffolk County, increased by 9 percent respectively. (LI Divorce Fillings up Under New No-Fault Law, March 11, 2012).
For more information, contact us for a free consultation and case evaluation at 631-923-1910.
