Frequently Asked Law Questions
Frequently Asked Law Questions
How do I begin divorce proceedings?
To commence a action for divorce, we will file a Summons and Complaint for Divorce with the County Clerk. Your spouse must be served with this Summons and Complaint for Divorce. There are two ways you can serve papers on your spouse: (1) Your spouse or his or her attorney can sign an Admission of Service; or (2) a third party, a process server or police department/sheriff’s department can serve the papers.
What do I do if I am served with divorce papers?
Your attorney must file a written Answer and Counterclaim within 20 days from the date you are served with the Summons and Complaint for Divorce, if you have been personally served within the State of New York. If you do not file a written response, the court could enter a default judgment against you. If you want the divorce as well, you should also file a Counterclaim for Divorce. This means that if your spouse changes his/her mind in the future and asks the court to dismiss the divorce, the court could deny that request and grant you a judgment of divorce instead on your counterclaim.
What if I don’t want a divorce?
It takes two willing people to have a successful marriage. The court will most likely grant a judgment of divorce even if only one spouse wants the divorce. However, that spouse must testify that he or she believes the marriage is irretrievably broken and cannot be repaired.
How do I support myself or see my children while the divorce is pending?
In most cases, temporary orders need to be issued by the court. These orders are effective while the divorce proceeding is pending. Temporary orders can cover child custody, support, maintenance, temporary use of personal property and/or bank accounts, temporary use of the marital residence, and temporary allocation of debts. While these orders are temporary and should have no bearing on the final outcome of your divorce, some courts continue temporary orders as permanent orders if they appear to work (i.e. parenting schedules).
What if my spouse leaves me for someone else or is living with someone else?
The court does not consider this fact in dividing property, awarding maintenance, setting support, or other financial matters. However, a spouse’s infidelity can have an impact on child custody if the new boyfriend/girlfriend has a negative or harmful impact on the minor children, or if your spouse’s behavior has dramatically changed towards the children.
Many times, determining how an article of property will be categorized can be difficult. A method called “Tracing” is often used to make these determinations. Tracing develops relevant evidence for the tracking of an individual’s separate property through its entanglement with marital property. Often when tracing is used, expert witnesses are needed to testify to the evidence or give appropriate appraisals of the property’s value.
Can my spouse and I settle our differences out of court and just get a judge to approve the settlement?
It is imperative that you consult with a qualified, family and/or matrimonial attorney before consenting to terms. If there are children involved, you want to make sure that their best interests are taken into account. Many cases are settled without requiring the parties to appear in court. Ultimately, most cases are resolved without a final trial. My firm welcomes the opportunity to settle your case without court intervention.
What is the difference between legal and physical child custody?
Legal custody is decision-making power. It is the right and responsibility to make major decisions concerning the child. Such decisions include, but are not limited to, consent to enter military service, consent to obtain a driver’s license, authorization for health care, religious instruction, extra-curricular activities, choice of public and/or private schools, colleges and/or trade schools.
Physical custody is the right and responsibility of a parent to have the child physically reside with him/her. When a parent has physical custody of their child, that parent has the right to make routine, daily decisions regarding the child’s care. Sole physical custody means the child lives with one parent continually and has limited or no visitation with the other parent. Primary physical custody means the child lives with one parent the majority of the time, while the other parent has more liberal visitation. Joint or shared physical custody means the child resides with each parent on a frequent basis.
Decisions regarding legal and physical custody of children can be very complicated and even contentious, due to the emotional involvement of the parties. When parents cannot agree on custody, the court may appoint a Law Guardian to represent the best interests of the child. This office specializes in all aspects of custody, including joint custody.
If my spouse and I can’t reach an agreement about custody of our children, what will a judge decide?
The “best interest of the child” is the standard courts use to determine custody issues. Courts believe that in most cases, children benefit from the active involvement of both parents in their lives. In the event that both parents cannot agree on a plan for child custody, the court will make the final decision.
Depending on the age of the child, the court will often consider the child’s wishes when making its custody decision. However, child custody is determined by what is in the “best interest” of the child. The court also considers that either overruling or granting the child’s wishes could be against the child’s best interest. Such a determination depends on the child’s age and maturity.
Will I have to pay child support? If yes, how much will I have to pay?
Child support is determined using the New York State Child Support Standards Act. This complex formula considers each parent’s income, the custody arrangement, and certain other expenses. The formula produces a payment amount, which is incorporated into a child support order. The parties can elect to deviate from this statute.
Child support is just that – support for the child’s well-being. It is not intended to fund the lifestyle of the custodial parent. A child support order may be modified, based on a parent’s “material” or substantial change in circumstances, such as a loss or gain in income or custody.
What is contempt?
Contempt is a remedy that is often used to compel the parent who has been ordered to pay child support and failed to do so, to appear in court to offer a legal excuse for failing to pay the support as previously ordered. Contempt is also used when a parent violates an existing order by denying access to children, violating the other parent’s rights in certain items of property or by physical or verbal attacks that have been prohibited by the court. The Court has the power to punish the party violating the court’s order by placing them in jail, fining them, or both.
What do paternity cases involve?
When contemplating issues about child custody, visitation, and support, another factor may apply: Who is the father of the child? It doesn’t always matter that the father is named on the child’s birth certificate. If the parties were not married when the child was conceived or born, then the man will not have custody rights and will not be obligated to pay any child support until he is found by a court to be the father (or until paternity DNA tests have found him to be the father).
Once a man is found to be the father he may:
Be required to pay child support pursuant to the New York State Child Support Standards Act;
Exercise visitation with the child;
Make decisions concerning the raising of this child; and
Make an application for custody of the child.
Therefore, it is important to have experienced family law attorneys who can explain all the aspects of paternity and the consequences that follow.
My ex-spouse moved to another state. What laws apply to interstate cases?
Child Custody & Visitation: The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) addresses child custody and visitation. It requires an original action to be started in the home state of the child. The home state is typically where the child has lived for 6 months or, if the child is not 6 months old, then where the child has lived primarily since birth. Suits to modify prior custody orders are brought in the same state and the same court from which the original order was entered, subject to the following:
1) There is a new home state of the children (they have been living in a new state for 6 months or more) or
2) There no longer exists sufficient evidence in the original state to make a lawsuit there practical.
Child Support: Under the Uniform Interstate Family Support Act (UIFSA), as long as a parent is still residing in the original state where the first child support order was issued, any modification of that support order will remain in that state. If both parents move from the original state, then the parent who wants to modify the child support must go to the state of the other parent and file the action. Once the action is filed and an order is entered, it will remain in that state until a parent no longer resides there.
Let’s Discuss the Results You Want to Achieve.
If you are considering a separation or divorce, have questions regarding debt and asset division, or need to modify an existing child custody and/or support order, contact the law offices of Susan D. Stuart to schedule a free consultation about your case. All telephone calls are returned within twenty-four (24) hours. Many new clients are referred to Mrs. Stuart from former clients, which is a tribute to the expertise of her legal services.
Susan D. Stuart, Esq. | 50 Route 111, Ste 204 | Smithtown, NY 11787 Phone: (631) 724-5800 | Fax: (631) 656-0081