Frequently Asked Questions About New York Divorce
Q. What happens if my spouse doesn’t comply with the divorce judgment?
A. The New York divorce court has broad enforcement powers, which include an income deduction order, money judgment, sequestration of property, and even incarceration for contempt.
Q. What should I do if I lose my job and I can’t comply with the divorce judgment?
A. If you can’t make a written agreement with your former spouse, you should make a court application for a modification as soon as possible. The clock will continue to tick during your delay. The court will usually not cancel any retroactive support arrears.
Q. My spouse and I are not getting along. Is there any reason I shouldn’t just move out to lower the tension?
A. There are many reasons. All but the very wealthy cannot afford to get a divorce, and it is very expensive to maintain two households at the same standard of living. Also, you will greatly prejudice your case for child custody. After you are out of the house your spouse will have little motivation to negotiate to finally conclude the case. It will probably be very difficult to bring your spouse to the bargaining table. Your spouse might your departure as the basis to obtain what is known as an exclusive occupancy order, which will prevent you from returning to the marital residence if you change your mind.
Q. I suspect that my spouse is using drugs and I am afraid for myself and our children. What can I do?
A. That’s a very tough question for which there are no easy answers. Interventions and family counseling are remedies best addressed by qualified family therapists and clergy. From a legal point of view, we focus on the existence of evidence. If you find what you think are drugs and you turn the contraband over to the police (as you must) your spouse could be arrested. That will not benefit the marital estate if your spouse is the breadwinner. But if you have some objective proof you can ask the divorce court to order a hair follicle test, which will usually show if your spouse has cocaine or marijuana in the past three months.
Q. Is it important to make a prompt and comprehensive request for temporary support?
A. Yes. It is extremely important. The temporary support order can be either the lifeline that enables the non-monied spouse to survive until the trial, or the noose that strangles the paying spouse (making him or her desperate to settle on far more generous terms). The divorce litigation can often be described as a one battle war. If the temporary support order is very low, the other spouse has no incentive to settle. If the temporary support is high the receiving spouse has no incentive to settle.
Q. If there is such danger surrounding the temporary support order, why don’t the courts fix the problem?
A. The court does the best it can in the circumstances. The temporary support order is determined upon an emergency basis upon the basis of conflicting statements in affidavits. There is often no way for the court to determine which written affidavit is correct. The issue of who is telling the truth often has to await the trial, when the witnesses testify in open court and subject themselves to cross examination. The trial court then assesses their demeanor and makes findings of fact as to who is telling the truth. So on the temporary support order the trial court does the best that it can on a temporary basis, by making a rough accommodation of the reasonable needs and resources of the parties.
Q. How does the court go about determining equitable distribution?
A. There are 14 statutory factors. Essentially the Court looks to the length of the marriage and then to the contributions by the spouses. Economic fault (gambling away the mortgage money in Atlantic City, or buying diamonds for your girl friend) is distinguished from marital fault (adultery).
Q. Does that mean I get nothing if I stayed at home to raise the children?
A. Not at all. The Court will also consider non monetary contributions as a spouse, parent and homemaker. So staying home to raise the children is very important. And being available to help your spouse’s career is also important.
Q. How does the court determine spousal support?
A. There are 12 statutory factors, essentially the same as the factors for the distribution of property. The Court will be guided by the pre-separation standard of living, and the length of the marriage and it will determine the applicant’s ability to become self-sufficient. Once again, the length of the marriage is key. If the marriage is over twenty years in duration the argument for long term spousal maintenance is very strong.
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