Divorce: Frequently Asked Questions
What is a legal separation?
A married couple can enter into a separation agreement if they are experiencing marital difficulties, but are not yet ready to file for divorce. If a couple believes the marriage is reconcilable, a legal separation would allow them time to live apart and determine how they wish to proceed before making any permanent legal decisions. After one year of legal separation, couples can file for divorce.
What is an annulment?
An annulment is a dissolution that treats the marriage as though it never occurred. Some people prefer an annulment to a divorce because it will be easier for them to remarry in their church. Others feel divorce carries a stigma they would prefer to avoid. Usually, grounds for an annulment include evidence of fraud, misrepresentation, or concealment in the marriage. A majority of annulments take place after a short period of time, and can be much more difficult to prove than a standard divorce. Talk to one of our lawyers to discuss which option will work best for your case.
What is the difference between a contested & uncontested divorce?
When divorcing couples cannot come to a resolution on the terms of their divorce, they will need to take their case to court and have a judge decide a final order. This scenario is known as a contested divorce. In an uncontested divorce, also known as cooperative divorce, couples amicably come to an agreement outside of court, allowing the divorce to be more private, cost-effective, and quick.
What is the difference between child support and alimony?
Child support refers to payments made by one parent to the other in order to provide for the needs of their child after a divorce. Payments are usually made by the non-custodial parent to the parent with physical custody of the child. The state of New York determines the amount of payment required based on each parent’s income level.
Alimony, also known as spousal support or maintenance, is money paid to one spouse by the other after divorce, or during a legal separation. Its purpose is to provide the lower-earning spouse with money for living expenses and to help them maintain the standard of living they enjoyed during the marriage. A judge will take into consideration the following factors when deciding alimony: both spouses’ present and future earning capacity, the length of the marriage, their age and overall health of each spouse, and more.
While there is no requirement that a couple be married in order to receive child support, spousal support can only be granted if the couple was married.
What are temporary support orders?
Depending on the circumstances and complexity of the divorce, finalizing it can take a long time. A spouse may wish to file a temporary support order during this time to request financial assistance for living expenses while waiting for the court order to be finalized.
To request the order, the spouse must demonstrate financial need in a written statement. Justifiable reasons for requesting relief include paying a mortgage or utilities, taxes, food, school tuition expenses for children, etc. A lawyer from our firm can assist you in determining if you should apply for a temporary support order, and we can help you complete the request properly.
What are orders of protection?
If a spouse ever feels they are the victim of domestic violence, or even if they feel threatened, they can ask for a temporary order of protection, or restraining order. A restraining order requires the other spouse to stay a safe distance away from their spouse, their marital residence, and their children until the case is heard in court. A judge will then make a decision to either terminate or extend the order. If the restraining order is violated, the offending spouse can be arrested and possibly sentenced to jail time.
What are separate and marital properties?
Separate property is any property owned by a spouse before the marriage. It also includes any inheritance or gifts received during the marriage. Marital property, on the other hand, includes any property acquired during the marriage with marital funds. No matter which spouse earned it or whose name appears on the title, it will be considered joint property, and each spouse will have a claim to part of it in a divorce. In the state of New York, property will be divided in a manner deemed fair, but not necessarily equal.
Note that separate property can turn into marital property if it was maintained through the use of marital funds or it increased in value due to the contributions of both spouses.
How are assets and liabilities divided during a divorce?
The court will decide how to divide property using the state’s equitable distribution laws. Each spouse will keep their own separate property and will be awarded a certain percentage of the total value of the marital property. Judges will consider all financial and non-financial contributions to the marriage when determining how to fairly divide property. Couples must remember that liabilities will be divided as well, and each spouse will be responsible for paying back a portion of their marital debt.
What is a prenuptial agreement?
A prenuptial agreement is a legal contract outlining certain rules regarding the couple’s finances in the event of divorce or death. It is signed before the marriage and can address some of the following topics: what property each spouse had before the marriage, spousal and/or child support after death, who can inherit what property, what will happen if a spouse becomes disabled, how taxes and debts are to be handled, and more. A prenuptial agreement can ensure that both spouses are on the same page before they marry, and can protect against any confusion in the future.