David Martin, Attorney

Divorce & Criminal Law Lawyer David L. Martin Esq.
Offices in Nassau and Queens Counties

Divorce... A Brief Introduction

A marriage is viewed as the economic union of two individuals. It does not matter who makes it or spends it during the time of the marriage because the parties are seen as an economic union.

The purpose of a divorce is to break up the economic unit. The parties to a divorce will put everything that occurred during the marriage on the table, and fairly or equitably divide it between themselves. Before I discuss the issue of equitable distribution, you need to be aware of the fact that a divorce action has two components.

The first component is grounds. Domestic Relations Law 170 §(7) was added on October 12, 2010, which read:

   Irretrievable Breakdown in a Relationship for at Least Six Months (DRL § 170 (7):

That the relationship between Plaintiff and Defendant has broken down irretrievably for a period of at least six months as long as one party signs an affidavit so declaring.

Let’s now discuss the second component of a divorce which is equitable distribution. For purposes of determining what are marital assets and debts, the Courts generally use a start date and an ending date. The starting date is the date of your marriage. The ending date is the date that one of you files an action for divorce. Any assets that are obtained, or any debts that are incurred, during this time period by either party are marital assets and debts.

Under the issue of equitable distribution here is a partial list of the issues that come up:

The disposition of the marital residence
A division of deferred compensation plans
A division of assets such as stocks, bonds, mutual funds, vacation homes, etc.
A division of marital debt such as a mortgage or credit cards
A division of vehicles that the parties own including who is going to be responsible for car payments and insurance
A division of the enhanced earnings potential for the obtaining of an advanced degree by one spouse
Now, under the new temporary maintenance rules, the non monied spouse has the ability to obtain a substantial financial award, pendente-lite (during the time of the divorce process). If you are the monied spouse, the statute has language that allows a downward deviation in limited cases. Call me to discuss.

The issue I left out of the list above is that of the children. A divorce involving children raises three additional issues. The first is the issue of custody, the second is the issue of visitation and the third is the issue of child support until emancipation, (21).

Let’s start with custody. There are two types of custody in the State of New York. The first is physical custody or residential custody and the other is legal custody. Physical or residential custody deals with the issue of who are the children going to physically live with?

Legal custody deals with decisions making regarding the health, education and welfare of the children. If the parties have joint legal custody it means that each parent will fully participate in making those decisions for the minor children. The Courts will tell you that joint legal custody only works when the parties have an ability to communicate.

The second issue is visitation. There are two ways to deal with this issue. The first is we can say that the non-custodial parent will have liberal visitation away from the marital residence as agreed to between the parties. The other approach is to sit down together and prepare a detailed visitation schedule. That schedule would include regular visitation, holidays, summer vacations, birthdays, etc.

The third issue is child support. The amount of child support that a non custodial parent pays to the custodial parent for the basic support of the minor children is governed by statute. Domestic Relations Law Section 240 covers this area. The child support is based upon combined parental income. All income up to $130,000.00 is mandatory in calculating child support. Any combined income over $130,000.00 is discretionary with the Court. The percentage of the adjusted gross income the non-custodial parent must pay for child support is as follows:

   1 child 17%, 2 children 25%, 3 children 29%, 4 children is 31%, 5+ children are 35%.

There are add ons to child support. These include health insurance premiums, unreimbursed out of pocket medical expenses, day care, and in limited cases, educational expenses.

There are other financial issues concerning the children that need to be resolved. These include college, life insurance, taking the children as a tax deduction etc.

SEPERATION AGREEMENTS:

I want to briefly discuss an alternative to a divorce. A separation agreement is a marital contract between the parties. Like any other contract, the agreement must have the basic elements of a contract which is offer, acceptance and consideration. Once negotiated, it is signed by both parties and notarized. The separation agreement is filed in the County Clerk’s office where it must sits for a period of one year. At any time the parties can go remove the document and destroy it. If they do so then they are in the same position that they were in before they entered into the agreement. After one year either party can move for a divorce bases on the fact that the party’s have lived separate and apart and pursuant to an agreement for a period of one year.

In the event that you and your spouse do not have the ability to communicate and negotiate a settlement, then attempting to enter into a separation agreement is a waste of time.

I use separation agreements in two types of cases:

The first is where the parties want to separate, but believe that there is a possibility of a reconciliation. In this instance, they resolve all of their financial issues now. They can decide whether or not to divorce later.

The second case I use it in is when one of the spouses has medical issues. As a matter of law, a person loses there spouses health insurance coverage upon the granting of a Judgment of Divorce. In a case where a separation agreement has been entered into the parties remain marriage and therefore the spouse remains on the health insurance coverage.

There is a lot more to talk about, but this is just an introduction. I have been practicing law for over 23 years and have devoted the last 16 years exclusively to divorce and family law. Give me a call and I would be glad to set up an appointment for a consultation.

Sincerely,
David L. Martin, Esq.

Nassau County Bar, Association: Matrimonial Committee
Queens County Bar Association: Matrimonial Committee
New York State Bar Association

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