Kevin Van Duser and Shelby Redmond handle a broad range of domestic relations and family-related matters such as marriage, adoptions, guardianships, premarital agreements, child custody, separation, divorce, spousal support, division of assets and liabilities, parental rights and visitation, and associated issues. According to U.S. Census data, the typical American family has changed dramatically over the years. For example, the 2000 Census showed that fewer than 25% of American families include married couples with minor children compared with 45% of such households back in 1960.
Today, a large percentage of marriages end in separation or divorce. When a couple decides to end their marriage, several issues will need to be addressed such as how the assets and liabilities will be divided, custody of the children and visitation rights, child support, and spousal maintenance. Sometimes the couple can reach agreement on these issues. However, when a couple cannot agree, a neutral mediator is sometimes used to facilitate an agreement, or a court will make the decision after reviewing all relevant information and evidence. Our attorneys can provide you with the legal advice and counsel you need to cope with the process in a sensible and successful manner.
There are two requirements that must be met before you can file for a divorce in New York State. You must satisfy the residency requirements and you must satisfy one of the grounds for divorce set forth in New York’s Domestic Relations Law.
First, you must satisfy one of the following residency requirements:
1. You or your spouse must have been living in New York State for a continuous period of at least two years immediately before the date you start your divorce action; OR
2. You or your spouse must have been living in New York State on the date you start your divorce action and for a continuous period of at least one year immediately before the date you start the divorce action, and at least one of the following must also be true:
a) Your marriage ceremony was performed in New York State; OR
b) You lived in New York State with your spouse as married persons; OR
3. You or your spouse must have been living in New York State for a continuous period of at least one year immediately before the date you start your divorce action and your grounds for divorce must have happened in New York State; OR
4. You and your spouse must be residents of New York State on the date you start your divorce action, and your grounds for divorce must have happened in New York State.
Next, you must satisfy have a ground (legally acceptable reason) for the divorce. There are seven legally acceptable reasons for granting a divorce in New York and they include:
1. Irretrievable breakdown in relationship for a period at least six months (commonly
known as "no fault divorce");
2. Cruel and inhuman treatment;
6. Living separate and apart pursuant to a separation judgment or decree;
7. Living separate and apart pursuant to a separation agreement.
Irretrievable breakdown in relationship or “no-fault” divorce.
To get a divorce on this ground, your relationship with your spouse must have broken down irretrievably, so that it is impossible to repair or reconcile, for a period of at least six months. Though commonly referred to as “no-fault” divorce, a court will not automatically grant you a divorce based on this ground. It must be shown that:
1) one of the parties has sworn under oath that the relationship has broken down
irretrievably for a period of at least six months; AND
2) you and your spouse have either resolved all issues related to distribution of
property, spousal support, child support, and counsel and/or experts fees and expenses, and the custody and visitation issues related to any minor children of the marriage OR these issues have been decided by the court and incorporated into the judgment of divorce.
Cruel and Inhuman treatment
The conduct of one of the spouses must so endanger the other spouse’s physical or mental well-being as to render it unsafe or improper for the couple to continue living together.• You cannot obtain a divorce on this ground simply because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.
An action for divorce may be maintained where the Defendant abandons the Plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.
Abandonment may involve one spouse physically departing the home without any intention of returning for a period of one year or longer prior to commencing the action, and continuing to the present, without any good reason for doing so and without your consent.
Another form of abandonment is called constructive abandonment. Examples of constructive abandonment include refusal to engage in sexual relations continuously for one year or more and changing a lock to exclude the other spouse from the dwelling continuously for more than one year.
Confinement of one spouse in prison for three consecutive years or longer is a ground for divorce.
An action for divorce may be maintained based on adultery. The ground of adultery can be difficult to prove because it required a corroborating affidavit of a 3rd party witness or other proof.
Conversion of a judgment of separation
This ground involves a judgment of separation of the Supreme Court. To maintain a divorce action the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.
Conversion of a written separation agreement
A separation agreement is an agreement between a couple setting forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary public and filed with the County Clerk in the county where one of the parties resides. If the couple lives apart for more than one year according to the terms and conditions of a properly executed separation agreement, this may be a proper ground for divorce.
Adoption is a legal process which involves transferring the rights of the child's birth parents to the child's adoptive parents. Persons seeking to become adoptive parents may pursue an adoption through different avenues, including agency adoptions, direct placement adoptions, and international adoptions. Agency adoptions involve the prospective adoptive parents working with a public or private adoption agency in the adoption of a child. Direct placement adoptions involve the birth parents placing the child with adoptive parents, which still requires court approval. In and international adoption, the prospective adoptive parents adopt a child from a foreign country.
Child Custody, Visitation and Child Support
In the area of child custody, the “best interests of the child” are paramount. Any agreement of the parents regarding custody of the child is given due consideration, but it is by no means controlling. The standard ultimately applied by courts remains the best interests of the child and all relevant factors are to be considered. Courts generally prefer to grant legal and physical custody over any children from a marriage to both parents. Legal custody refers to who will make important decisions for the child such as those involving healthcare, education, and religion for the child. Physical custody refers to a parent having a right to the child living in the parent's home. In cases where a court awards a parent sole physical custody, it may also award the non custodial parent visitation rights.
To calculate child support payments, courts will look at many factors which may include each parent's income, the child custody arrangements, expenses related to healthcare and education, costs related to sports or other activities, car expenses for older children, and the parent's standard of living.
Premarital agreements are also known as prenuptial agreements or antenuptial agreements, and are entered into by couples before the marriage. A valid agreement between spouses may include a contract to make a testamentary disposition or waive a right to elect against the provisions of a will; a provision for the distribution of marital and separate property; a provision regarding maintenance or other conditions of the marriage, as long as the terms are fair and reasonable when made; and, provisions for child care, custody, education, and maintenance. An agreement is generally prohibited from providing for the procurement of grounds for divorce. Also, the spouses generally cannot contract to relieve either spouse of the liability to support the other such that the other will become incapable of self-support.
During a divorce or legal separation proceeding, a court may impose a financial obligation on one spouse to continue supporting the other after the divorce or separation. The factors that determine the amount and duration of spousal support may include:
•the length of the marriage,
•the age of each person,
•the marital standard of living,
•the financial resources of each person,
•each person’s income, and
•the health or well being of each person.