Answers To Basic Common NY Divorce Law Questions

Here are the answers to the most frequent questions clients ask. Please remember that there are exceptions to everything in the law and that one size does not fit all. However, as a starting point here are the basics.

  1. Child Support Formula: After certain deductions most notably FICA and spousal support and if income is below the “cap” it is:
    1. One child: 17%
    2. Two children 25%
    3. Three children 29%
    4. Four children 31%
    5. Five children 35%
    6. Plus Pro rata share of child care (for work or educational purposes) and pro rata share of health insurance and expenses
  1. When is emancipation: Age 21, unless the child marries, enters the military, is self-supporting (usually earning at an annual rate of at least $16,000), child moves away from the home of both parents not for purposes of education (college residence).
  1. How is child custody determined when the parents cannot agree: The “best interests of the child” is the phrase. Custody is determined based upon a multi-prong analysis. One of the most important factors is that the custodial parent does not interfere and alienate the child from the other parent. The child’s preferences and age are also very important. The preferences of a five year old do not have the same weight as the preferences of a 15 year old.
  1. How long does spousal support (maintenance) last: There is a statutory formula that gives a guideline range based upon the length of the marriage. However, there are numerous factors that can increase or decrease the guideline length. In addition, maintenance terminates if the recipient remarries, if either party dies or if there is cohabitation that meets the statutory guideline or if the parties have written their own definition of cohabitation.
  1. How much is spousal support: There is a statutory formula that calculates the presumed correct amount. There is a statutory cap of the amount of income the formula is applied to unless the court determines to use income over the cap.
  1. Can child support be modified: Yes, in most cases if it has been at least three years, or if there has been an upward or downward change in earnings of at least 15%, or there has been a substantial change of circumstances.
  1. What is No-Fault Divorce: All that means is that the divorce will be granted based upon irreconcilable differences or irreparable harm to the marriage lasting at least six months. It does not mean that all other issues are resolved.
  1. What is a Legal Separation: You are legally separated after signing a Separation Agreement or a Divorce Settlement Agreement or if the court has issued a judgment of separation. You are not divorced until the court signs and the clerk enters a judgment of divorce.