Kurt T Richards | Attorney

CONSUMER INFORMATION REGARDING RICHARDS’ PRACTICE AREAS

DIVORCE

Grounds For Divorce

Unlike many states, New York does not allow couples to divorce solely because of incompatibility or irreconcilable differences. Certain limited grounds do exist, however. A personal meeting can help determine the likelihood of establishing grounds for divorce.

If you and your spouse can agree upon the concept of obtaining a divorce, costs can be substantially reduced. Likewise if you can agree upon key terms of a divorce settlement, we can usher you through a consensual divorce which can be relatively inexpensive, and can take approximately two to four months if you have no children or approximately four to six months if there are children of the marriage.

If you and your spouse are not in agreement as obtaining a divorce or on the key terms, we can certainly help you as well. As can be anticipated, however, the more contentious your personal relationship, the time and expense of obtaining a divorce will increase.

We welcome your inquiries and would be happy to meet with you to provide a free consultation to help you explore the specific options which may be available to you.

Child Support

In New York we follow the Child Support Standards Act, which sets forth a percentage of a non-custodial parent’s adjusted gross income (that is annual gross less social Security, Medicare and City taxes) for child support depending on the number of children. The percentages range from 17% for 1 child through 35% for 5 or more children.

Custody/Visitation

It is currently common for divorced individuals to enjoy joint legal custody, with the child physically residing with one parent, – usually the mother - and liberal visitation rights to the other parent including alternate Holidays and other special days. Unfortunately, some parents cannot agree and use their children as pawns in their litigation. Not only does this negatively impact the children, it also generates unnecessary legal fees.

Spousal Support

Alimony is now referred to as “maintenance” and based upon factors set forth in the statute. Maintenance may be permanent or limited in duration. Unlike child support there are no hard and fast percentages or formulas for fixing spousal support. Rather, the Court looks at a myriad of factors such as the duration of the marriage, the age of the parties and their respective incomes.

Annulment

A man and woman must be legally capable of entering into a valid marriage. If the parties are under a disability, the marriage can be annulled, that is, it can be voided. If either spouse is incapable of having marital relations, the marriage may be annulled. Minority may also be grounds for annulment. A marriage between persons under the age of 18 may be annulled, at the discretion of the court, if the spouse under 18 wants an annulment.

If, after marriage, either partner becomes incurably insane for five years or more, the marriage can be annulled. However, the same spouse may be required to support the insane spouse for life.

The parties must knowingly consent to the marriage. It may be voided if either spouse consents to marry as a result of the force or duress of the other spouse or if either spouse cannot understand the nature, effect and consequences of marriage.

A marriage may also be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse can obtain the annulment on lack of consent. However, cohabitation (sexual intercourse) evidencing forgiveness is an absolute defense.

Equitable Distribution

Division of assets and the fixing of support are covered by the Equitable Distribution Law. The Statute is founded on the philosophy that a marriage, especially one of long-term duration, is an economic as well as social partnership. Two classes of property were created, known as “marital” and “separate” property. Marital property is all property acquiring during the marriage (regardless of how title is held), except inheritance, gifts from third persons and compensation for personal injuries.

Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles. Valuation of marital property may require expert advice. The distribution of marital property and the award of support as a result of matrimonial negotiations or proceedings may involve complicated and vital tax consequences to both parties, which require expert advice.

Separation Agreement

A separation agreement is a detailed contract, which should be prepared by attorneys, under which the parties agree to live separately for the rest of their lives. It should set forth the respective rights and duties of husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship. The same attorney is absolutely prohibited from representing both spouses no matter how “friendly” the matter may appear on the surface. Here, the skill and experience of the attorneys for the husband and wife are uniquely valuable in helping them reach an agreement which will be fair, just and reasonable to both parties and their children.

If a separation agreement is properly prepared and executed, and either the agreement or a memorandum thereof is filed in a confidential court file with the clerk of the county where one of the spouses resides, either party may apply for an automatic “no-fault” divorce, after one year. Care must be taken, however, that the statutory requirements are complied with. All that must be proven is that the agreement was duly executed and acknowledged and was properly filed; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action and that the plaintiff has substantially complied with the terms of the separation agreement.

Post Divorce Issues

There are unlimited issues that may arise after your divorce. Some common ones relate to upward or downward modifications in child support, spousal maintenance, visitation and custody. Other issues include issues relating to enforcement of a divorce agreement, possession, relocation and sale of a marital home.

Essentially, if the matter cannot be settled then litigation papers are prepared and filed with the court and argued before a Judge.

Pre-Nuptial Agreement

A pre-nuptial (“pre-nup”) agreement signed before marriage allows parties to set forth certain rights and obligations to the other in the case of a divorce. It cannot pre-arrange, however, for child support or custody obligations. Moreover, in order to avoid potential problems like a judge declaring same unenforceable, both parties (the bride & groom) should have independent legal counsel, the agreement should be fair, and there should be full disclosure by the parties of their income and assets. The agreement should be executed well in advance of the marriage, and lastly, the agreement should be clear, unambiguous and voluntarily entered into without coercion or stress. Moreover, the agreement should not violate public policy issues or financially encourage a divorce otherwise it risks being set aside by a court.

ADOPTIONS

There are many, many things to think about before adopting a child: Is you home large enough? Are you financially capable of raising a child? Do you have the time and ability to provide for the child?

Whether you privately adopt a child in this State or need to re-adopt a child in this State (a child previously adopted in a foreign country) or are a step-parent desiring to adopt a step-child, you should carefully think about the costs and ramifications, including the life changes and added obligations that will come about.

A myriad of documents need to be prepared and filed with a court of competent jurisdiction, and court representation will be required to finalize the adoption.

NAME CHANGES

Under New York Law you have a right to change your name. There are certain limitations to doing the same. For instance, it cannot be done to assume a name that may be unacceptable to the court (e.g. vulgar words) usually a reason is set forth in the name change petition. The proposed change needs to be advertised in a local newspaper. A copy of your birth certificate is required (or some alternative in case of foreign born persons).

To change your minor child’s name, both biological parents typically have to agree. This is not so however in every case and depends on the facts involved.

DWI / DUI

If you get arrested for driving while intoxicated (DWI) and/or driving under the influence (DUI) you will need legal representation.

It is a crime under New York Law (and the other 49 States) including the District of Columbia) to drive a vehicle with a blood alcohol concentration (BAC) of .08 or more.

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