Commonly Asked
Questions & Answers

An uncontested divorce is when the parties have agreed to divorce, agreed to the grounds for divorce, and have agreed on all substantive issues involving custody, visitation, child support, maintenance, equitable distribution and counsel fees. A judge will not make decisions on your case and you will not have to attend court. A contested divorce is any divorce where the parties have not reached an agreement on grounds and all of the above issues. You will have to go to court and a judge will make decisions on the case.

Custody is decided by the “best interests of the child.” There is no gender preference when deciding who should be the custodial parent. Courts also prefer the status quo and are hesitant to make changes to a child’s current life, whenever possible.

There are two types of custody. The first is physical custody, which delineates where the child physically resides. The second type of custody is legal custody. This means who can make decisions about the child’s health, education, religion and other matters. In cases where parents are amicable and able to work together, joint legal custody is the preferred option. In highly contentious cases or cases involving allegations of domestic violence, joint legal custody is not realistic.

Yes, you may still seek custody of a child even if you are not the child’s biological parent. However, biological parents have preference for custody over non-parents in New York. In order to have standing, you must prove two things. First, that extraordinary circumstances exist. Extraordinary circumstances may include that the biological parent is unfit, abandoned the child, abused the child, neglected the child, or that there has been an extended disruption of custody between the biological parent and the child. Second, you must prove that is in the best interests of the child for you to be awarded custody. These cases may take a long time to decide, especially if the biological parent does not consent to you receiving custody.

Basic child support in New York consists of a monthly amount paid by the non-custodial parent to the custodial parent. It is governed by Domestic Relations Law §240 and §413 of the Family Court Act. Basic child support is supposed to include the cost of housing, clothes and food. You should also seek pro-rata “add on” expenses. Add-on expenses include childcare costs, unreimbursed medical bills, tutoring, private school tuition, extracurricular activities and summer camp. The amount of child support varies based on the number of children that you have and the total combined parental income.

For example, mom makes $150,000 and dad earns $100,000 and they have two children. In total, the combined parental income is $250,000. Let’s assume dad is the custodial parent. The current child support cap is $183,000. (This varies as the Legislature increases the cap every few years.) Mom would owe basic child support of $183,000 x .25 (2 children) x .60 (mom’s share of child support) = $27,450 in annual child support or $2,287.5 in monthly child support. Mom would also owe 60% of pro rata expenses and dad would owe $40% of pro rata expenses.

Child support percentages:

• 17% for 1 child

• 25% for 2 children

• 29% for 3 children

• 31% for 4 children

In cases where both parents have a true, fifty-fifty split of parenting time with the child, the more “monied spouse” owes the less monied spouse basic child support.

For heterosexual married couples, there is a legal presumption that the husband is the biological father of a child born of the marriage. If you are married and seeking a divorce, child support matters will take place in Supreme Court. We can file a pendente lite motion and ask for child support, maintenance, exclusive occupancy of the marital residence, and pendente lite counsel fees if the other party will not agree to pay an appropriate amount of child support.

If you are not married to the father of your child, you need to file a petition in Family Court to legally establish paternity. If the father of your child did not sign an Acknowledgment of Paternity, and the man will not admit to paternity and consent to an order of filiation, you will need a court ordered DNA test. The court will not accept the results of an out of court DNA test. (Even though most are accurate!!) In New York, a man’s name listed on a birth certificate is not legally sufficient to prove that he is the father.

If your child has always had a close relationship with a particular man, that man has held himself out to be a father in your child’s life, and your child genuinely views that man as their father, you may wish to consider claiming “equitable estoppel,” and request a hearing to prevent the man and child from having to take a DNA test in order to “prove” paternity. Most people do not understand that equitable estoppel is a potential option. You should consult with an experienced family law attorney about the pros and cons of this legal strategy based on the specific facts of your case.

I prevailed in an Equitable Estoppel trial where the Court found the man to be the father of a child based on testimony and photographs entered into evidence. A DNA test was not needed based on the facts of the case, and an order of filiation was ordered by the Court. Once the mother of the child had the order of filiation, she was then able to collect child support from the man who had participated in the child’s daily life, but had previously refused to pay child support.

That depends. Similar to child support, there is a specific formula for calculating maintenance that I am happy to go over with you. It is governed by Domestic Relations Law §236(b) and the formula depends on whether child support is also being paid, in addition to maintenance. Maintenace is supposed to be rehabilitative. For example, if one spouse was a home-maker and raised the children while the other spouse worked full-time, maintenance is more likely to be ordered. If both parties earn roughly the same income and always worked during the marriage, maintenance is less likely.

Generally, the longer the duration of the marriage, the more maintenance you are eligible to receive. The shorter the duration of the marriage, the less maintenance you are eligible to receive. The maintenance cap is currently $228,000 but the Court’s have discretion to award maintenance over the cap if one party earns over that amount and the judge decides it is appropriate.

The Courts Consider a Multitude of Factors to Decide Whether Spousal Maintenance Should Be Ordered

• The age and health of the parties,

• The standard of living established during the marriage,

• The present and future earning capacity of both parties,

• The need of one party to incur additional education or training expenses before becoming self-supporting,

• The care of the children, stepchildren or elderly parents or in-laws that has inhibited a party’s earning capacity,

• The income and property of the parties, including marital property subject to Equitable Distribution, and

• Acts against one party by the other that have inhibited a party’s ability to obtain meaningful employment, including acts of domestic violence.

(Please note that this is not an exhaustive list and there are numerous other factors to consider.)

Duration Timeline for Maintenance:

• If the marriage lasted 0 to 15 years, the monied spouse may have to pay for 15%-30% of the marriage.

• If the marriage lasted from 15 to 20 years, the monied spouse may have to pay for 30% -40% of the marriage.

• If the marriage lasted for over 20 years, the monied spouse may have to pay for 35%-50% of the marriage.

Yes! It used to be that pets were considered mere property, but that mentality has gradually shifted with the times. Now, NY Courts will consider a multitude of factors to ascertain what is in the “best interest of a companion animal.” The Court may consider who feeds/cares for the animal, who has more time for the animal, who pays the veterinarian bills and even who has more space for the animal.

As a young associate attorney, I filed motion papers that a best interest standard should apply for pets, in what shockingly at the time, became a benchmark case. Travis v. Murray, 42 Misc.3d 447 (Sup Ct. NY Co. 2013). The case involved a lesbian couple who were married and had only one marital possession – their beloved dog, Joey – that they were fighting over. It is always a good idea to specify in an agreement who gets to keep the pet or establish a sharing schedule.