FREQUENTLY ASKED QUESTIONS?

What are the Grounds for a Divorce?  NEW NO-FAULT DIVORCE

• New Ground effective  in October 2010: One party must state under oath that the relationship between husband and wife has broken down irretrievably for a period of at least six months.  
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  Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit withthe defendant.
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  The abandonment (including the refusal to have sex- referred to as constructive abandonment) of the plaintiff by the defendant for a period of one or more years.
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  The confinement of the defendant in prison for 3 or more years.
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  The commission of the act of adultery.
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  Living separate and apart pursuant to a decree of separation or a written agreement of separation.

How is Child Support Calculated?
Child support is a percentage of the non-custodial parent's adjusted gross income. For 1 child it is 17%; for 2 children 25%; and for 3 children 29%.

How is Spousal Support Determined?   NEW LEGISLATION.   Generally depends upon length of marriage and a percentage of the difference between the respective incomes of the parties.

The Court must consider the standard of living of both spouses that was established during the marriage, the circumstances of the case and of the parties, whether the spouse who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other's reasonable needs. The following are factors that must be considered:     
    The income and property of each spouse including marital property distributed to each spouse.
    The duration of the marriage and the age and health of each spouse
    The present and future earning capacity of each spouse
    The ability of the spouse seeking maintenance to become self supporting and, if applicable, the period of time and training necessary to do so
    Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
    The presence of children of the marriage in the respective homes of each spouse
    The tax consequences to each spouse
    Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the
     career or career potential of the other spouse
    The wasteful dissipation of marital property by either spouse
    Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration
    Any other factor which the Court shall expressly find to be just and proper

How is Marital Property Divided under Equitable Distribution Law? 

Property that must be allocated upon divorce is usually property that was acquired during the marriage -- in other words, marital property.  In most cases, property acquired before the marriage, personal injury awards to one spouse, property acquired after the divorce and gifts or inheritances received by one spouse during the marriage are not considered marital property.

Once the court decides which property is marital property, it must determine the value of the property.  Then, it allocates the property between spouses.  If you and your spouse are able to agree upon the allocation of property and other important matters, you will have a far greater influence over the ultimate resolution of your situation.

Certain kinds of property continue to create controversy during divorce.  Divorcing couples should be aware of the issues these assets present.

• Family Home.  The primary residential property owned by the divorcing couple is often their largest asset.  Dealing with its division can be complicated, particularly when there are children involved.  Courts often favor allowing the custodial parent to retain the home.  Doing so may require complicated arrangements to ensure that the spouse who does not live in the home receives adequate compensation for the home's value, as well as provisions for ongoing mortgage payments, tax liabilities and upkeep of the home.  When these issues cannot be resolved, the couple may be forced  to sell the home and divide the proceeds.

• Pensions.  Pensions often are the second-largest marital asset.  A court in a divorce case may enter a Qualified Domestic Relations Order (QDRO) requiring the administrator of the ERISA-regulated pension to make payments to both the worker and the former spouse.

• Family-Owned Businesses.  When spouses work together in a family-owned business, division of the business presents complex allocation and valuation problems.  As with family homes, if there are not enough marital assets to compensate the non-retaining spouse adequately, a forced sale or long-term buyout may be necessary.

 What is a Prenuptial Agreement?
A prenuptial agreement or antenuptial agreement is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support.

What is an Uncontested Case?
A divorce proceeding in which there are no disputes as far as the legal issues. Both parties tend to agree on all matters and are typically just ready for the whole process to be over with.

What is The Difference Between a Legal Separation and a Divorce?
Unlike divorce, a legal separation does not put an end to the marriage.  It outlines the rights and responsibilities of each spouse while they are living apart. You remain legally married while choosing to live separate lives. Issues that can be addressed in a separation agreement are division of assets and debts, child custody and child support, and visitation .
 
How is Child Custody Determined?
The court will look at the overall facts and circumstances and determine what is in the best interest of the children. Some significant factors are:
(1) Which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent ;
(2) The love, affection and other emotional ties between the parents and the child;
(3) Each parent's ability to provide the child with food, clothing, medical care and other material needs;
(4) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(5) The permanence of the existing or proposed custodial home;
(6) The moral fitness of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The preference of the child, if the child is intelligent, understanding and experienced enough to express a preference;
(10) Evidence of domestic violence or child abuse;
 

Conclusion:
Many couples have a difficult time reaching an agreement about how to divide their property.  Because the ultimate division of property depends on the complexity of your assets and liabilities, it is important to consult with an experienced family law attorney. We can help you.  Call the Law Offices of Herbert Rubenfeld for assistance. (631) 777-7200.

(631) 777-7200

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Fax: (631) 777-7203
E-mail: RubenfeldLaw@Gmail.com

425 Broadhollow Road - Rt. 110
Melville, NY 11747

Located on Route 110 one block south of Long Island Expressway (Exit 49S) in Citibank Building

Law Offices of Herbert Rubenfeld, P.C.
Providing Divorce and Family Law Services for More Than 50 Years