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New York Divorce Laws
New York Divorce Laws – Alimony
What we often call alimony in New York is officially called maintenance. Sometimes it is called spousal maintenance or spousal support. It is a payment from one spouse to the other for support. It is usually limited in time – lifetime maintenance is very rare.
The word “alimony” was used in New York until 1980. Alimony was a payment made by one spouse to the other in a divorce because all the marital property was titled in the name of one (usually the Husband), who got to keep it. The other spouse got alimony.
The divorce laws in New York were changed in 1980. The changes recognized marriage as an economic partnership. As a result, the new divorce laws required the equitable distribution of all property that was gained during the marriage. Whose name was on the title did not matter. In 2010, the New York divorce laws were further modified to allow for temporary maintenance while the husband and wife were in litigation in court.
On September 25, 2015, the New York divorce laws were modified again. Those latest changes affected divorces filed on or after January 25, 2016. In brief, the most significant change was providing an official formula for calculating spousal maintenance.
The spousal maintenance formula attempts to come to the same conclusions in similar divorces regarding the amount of support. Previously the awarding of maintenance relied on the subjective opinion of a Judge.
The formula does not state how long maintenance should last. It simply offers a set of guidelines, based on the length of the marriage. The formula and the guidelines are complicated. We will show how they work in a later article in this series.
A 401(k) is a form of the retirement fund. You can have pre-taxed money deducted from your paycheck and deposited in a special account, called a 401(k) account. Some employers will also contribute to your account. The money in your account grows over time, based on interest and good investments.
You do not pay any income tax on the money deposited into your 401k. It is a way to save more income for the future without increasing your current taxes. You don’t pay income tax on that deposited money until you begin to withdraw it when you retire. You can begin to withdraw a certain amount each year after you are 59 ½. After 70 you must withdraw a certain amount every year, called a Required Minimal Distribution or RMD.
The portion of any 401(k) account accumulated during the marriage is a marital asset. It doesn’t matter whose name it is in. If it was earned during the marriage, it belongs to both of you. Typically, the percentage of the account that was earned during the marriage is shared equally between husband and wife when they divorce.
To be more specific, it is not the actual amount that was earned during the marriage that is shared, but the percentage of the entire amount that was earned during the marriage that is shared. For example, if you worked for 100 months, and were married for 50 of those months, the marital portion is 50% of the total balance. Each of you would get half of that fifty percent, so the spouse whose name the account is in would get 75% and the other spouse would get 25%.
In order to transfer the portion going to the other spouse upon divorce, you need to prepare a special kind of Court Order. That will allow you to make the transfer without incurring a penalty on the transfer. The special order is called a Qualified Domestic Relations Order (QDRO).
In New York, there are two kinds of property in a marriage. Anything that you owned prior to getting married is separate property and the other spouse is not entitled to any part of it. Anything that you obtained during the marriage is marital property and will be shared between the two of you.
In addition, an inheritance that you receive during the marriage, or a gift from someone other than your spouse that you receive during the marriage, is separate property. But, if you mix separate property with marital property it becomes complicated. There really isn’t enough space here to discuss this fully, and there are a lot of exceptions when property becomes mixed together. This all needs to be untangled in a divorce.
Marital Property includes physical property such as houses and cars, stock accounts, bank accounts and any other assets of value accumulated during the marriage. In a divorce, marital property gets divided via equitable distribution, usually 50/50. Separate property remains with the spouse who brought it into the marriage or inherited it.
Adultery is defined as sexual relations with someone not your spouse while you are married. It is a traumatic experience for the other spouse and is often the trigger for a divorce.
The spouse cheated on is usually surprised to learn that adultery rarely has any effect on the divorce outcome. Adultery does not affect custody of children, distribution of assets and liabilities, or even spousal support. The Courts do not take adultery into account in resolving those issues. Often the cheated-on spouse cannot accept that infidelity is ignored by the Courts. However, that is how it is in virtually all cases. We have no-fault divorce in every state in the United States. Adultery is virtually always a non-issue in divorce.
Clients thinking about divorce often ask me – what about abandonment. “I don’t want to be charged with abandonment and lose my house if I move out.”
The idea of abandonment is from the divorce laws of many years ago. It refers to abandoning a spouse (usually the wife) and the children. Failing to support them is a form of abandonment.
Abandonment has nothing to do with property rights. If you move out of the marital residence and stay out long enough, it is true that you may be unable to move back in. However, you don’t lose any of your property rights to the house.
The only instance where abandonment has any application is in child custody. What if you move out of the house and leave the children with the other spouse? It is very unlikely that you could then obtain custody. That is the only real application of abandonment in divorce.
Child Custody – New York Divorce
There are two aspects to custody: legal custody and residential custody.
Joint legal custody means that both parents have a right to be involved in the major decisions concerning children. Residential custody is more significant in daily life. The residential custodial parent is the one the child lives with more. The residential custodial parent is the one entitled to receive child support from the other parent. The residential custodial parent’s address is used for school enrollment.
Sometimes a couple wants to do joint custody without either paying child support. The Courts will agree to that if you both want this arrangement, but if one parent does not agree then the Court will still award full child support to one of the parents. If one parent has the child more time than the other, that parent will be awarded the full amount of child support. If the parents have the child exactly equally the Court will award the full child support to the parent with the lesser income. The Courts do not allocate child support based on how much time each parent has the child. Thus, you can agree to neither getting child support and the Court will usually approve this arrangement. But if you don’t agree, the Court will just award the full child support to one parent.
New York has a law called the Child Support Standards Act (CSSA). It applies both in divorce and to unmarried couples with children. It provides a formula for calculating child support. Basically, you take the gross income (not net after taxes) of the non-residential custodial parent and reduce it by Social Security and Medicare taxes. That is the adjusted CSSA income.
You then multiply that adjusted income by a percentage to figure the yearly child support – 17% for one child, 25% for two children, 29% for three children, 31% for four children, and no less than 35% for five or more children. Child support covers food, clothing, and shelter.
There are other items of child support that are also required, but are not covered in that basic child support calculation. Health insurance and child care are the two biggies.
There is supposedly a cap on the non-residential custody parent’s income, used to calculate child support. In reality, it doesn’t actually work that way at all. The Courts are just required to calculate child support on income above the cap in a different way. The cap is a trap of misunderstanding to those who don’t understand how child support actually is calculated.
Child custody ends at 18 even though child support is payable until the child is 21.
What is the difference between separation and divorce? Simply, if you are
legally separated you are still married. You can’t marry someone else (could be one of the benefits!).
The main reason people get legally separated rather than divorced is to keep one of the spouses on the other’s health insurance. This is a complex issue. You need to confirm that the health insurance provider will continue to cover the separated spouse before you get separated.
There are two kinds of legal separation in New York. In the first you sign a Separation Agreement, which has to be signed in a very specific legal way. Then you are legally separated according to a contract of separation. You file this Separation Agreement with the county clerk and that is it. It is legally binding, but enforcing its provisions are complicated and cumbersome if a spouse violates the contract.
If you are not worried about the non-residential custody parent paying child support, then a Separation Agreement is usually enough.
The Courts always tell people they should get a Judgment of Separation, the second type of legal separation in New York. If you are concerned with enforcement, or you are transferring financial assets, then a Separation Agreement may not be enough. Instead, you will need a Judgment of Separation from the Court.
The process of obtaining a Judgment of Separation is exactly the same as obtaining a Judgment of Divorce. It will ordinarily be the same price. Your separation papers will be submitted to the courts for the Judge to sign, like a divorce.
Then, in the future, if you want to get divorced, you will have to go through that same process as you did to get a Judgment of Separation. You will have to spend the same amount of money again as you did for the Judgment of Separation. It is more expensive, not less, to obtain a Judgment of Separation and then get a divorce.
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