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To file for divorce in Long Island, either spouse must meet one of the following residency requirements:
- either spouse must have lived in the state for at least 2 years prior to filing;
- either spouse has been living in the state continuously for at least 1 year before the divorce is started and the couple got married in New York, lived in New York as a married couple, or the grounds for the divorce happened in New York; or
- both spouses are residents of the state on the day the divorce begins and the grounds for the divorce happened in New York.
Next, the filing spouse must establish a ground for the divorce. This could be something concrete like adultery or abandonment, or it could be general like an irretrievable breakdown of the marriage.
Note that couples without minor children may file for uncontested divorce, but most couples with children must proceed in a traditional divorce process.
To start a divorce case, the petitioning spouse must fill out the appropriate forms and file a Summons with Notice or a Summons and Verified Complaint (which has the grounds for divorce). Afterwards, the spouse needs to serve their spouse with the papers. From there, the spouse will respond, and they can proceed to negotiation.
Litigation in Family Court
If spouses cannot negotiate an agreement in mediation or some other collaborative method, they will proceed to trial for the judge to decide. While litigation is costly, certain matters can only be resolved in trial, especially in situations of high conflict.
For instance, to decide a child custody arrangement, the judge will consider what will be in the child’s best interests, including:
- Child's Wishes: The judge may take into account the child's preferences, especially if the child is of a certain age and maturity where their opinion can be considered (usually around 12 or older).
- Parenting Skills and Stability: The court assesses each parent's ability to provide a stable and nurturing environment for the child. Factors include the parent's mental and physical health, parenting skills, and lifestyle stability.
- Existing Relationship with the Child: The nature and quality of the relationship between each parent and the child are evaluated. The court considers which parent has historically been the primary caregiver and the emotional bond between the child and each parent.
- Work Schedules and Availability: The judge examines the work schedules of each parent to determine their availability and capacity to care for the child.
- History of Caretaking Responsibilities: The court considers which parent has been primarily responsible for the child's care, involvement in school activities, medical needs, etc., prior to the custody proceedings.
- Child's Adjustment to Home, School, and Community: Disruption to the child's established routines, including school, neighborhood, and community ties, is a crucial factor. The court aims to minimize disruption for the child.
- Parent's Ability to Co-Parent: The willingness and ability of each parent to encourage a positive relationship between the child and the other parent are important. The court looks for parents who can cooperate and support the child's relationship with the other parent.
- Any History of Abuse or Domestic Violence: Allegations or evidence of abuse, neglect, or domestic violence can significantly impact custody decisions. The safety and well-being of the child are paramount.
- Siblings and Family Relationships: If there are siblings involved, the court might consider keeping them together for the sake of their relationships, unless it's deemed not in their best interests.
Similarly, for child support, the judge will consider the following factors:
- Income of Both Parents: The primary factor is the income of both parents. The court considers each parent's gross income, including wages, bonuses, commissions, pension, and other sources.
- Child's Financial Needs: The court assesses the child's needs, including education, healthcare, childcare, and other essential expenses.
- Parenting Time and Custody Arrangement: The amount of time the child spends with each parent can affect child support calculations. The more time a child spends with a non-custodial parent, the potential for adjustments in child support exists.
- Additional Child-related Expenses: Apart from basic support, the court may consider extraordinary expenses such as medical care, educational costs, extracurricular activities, and special needs of the child.
- Income Potential and Imputed Income: If a parent is voluntarily unemployed or underemployed, the court might impute income based on the individual's earning capacity to ensure fairness in child support calculations.
- Other Dependents: If either parent has children from other relationships they support, it might affect the child support calculation for the current child.
- Standard of Living and Lifestyle: While not the primary factor, the court may consider the standard of living the child would have enjoyed if the parents had stayed together.
- Healthcare and Childcare Costs: The court accounts for reasonable healthcare and childcare costs, including insurance premiums, copayments, and daycare expenses.
- Any Agreements Between Parents: If parents have come to their own agreement regarding child support, the court may review it to ensure it meets the child's needs and may approve it if it's fair and in line with the child's best interests.
When the property division decision defers to the court’s deliberation, the judge might examine:
- Marital vs. Separate Property: The court distinguishes between marital property (acquired during the marriage) and separate property (acquired before the marriage, through inheritance, or as a gift). Marital property is subject to division, while separate property generally remains with the original owner.
- Duration of the Marriage: The length of the marriage can influence how property is divided. Longer marriages often result in a more even distribution of assets acquired during that time.
- Income and Earning Potential: The income and future earning potential of each spouse are considered. If one spouse significantly contributed to the other's career or sacrificed their own career opportunities for the family, it might affect the distribution of assets.
- Contributions to the Marriage: The court evaluates the contributions made by each spouse to the marriage, including financial contributions, homemaking, child-rearing, and career sacrifices.
- Standard of Living During Marriage: The judge may consider the standard of living established during the marriage and try to ensure both spouses can maintain a reasonably comparable lifestyle post-divorce.
- Health and Age of Each Spouse: The health and age of both spouses are taken into account, especially if one spouse has health issues or is closer to retirement age.
- Custody Arrangements and Child Support Obligations: The court might consider the custody arrangement and any child support obligations when determining property division to ensure the well-being of the children is maintained.
- Debts and Liabilities: Alongside assets, the court also considers any debts or liabilities accumulated during the marriage when dividing property.
- Tax Consequences: The potential tax implications of different asset divisions could be considered to ensure a fair and equitable distribution.
- Any Pre-existing Agreements: If there's a prenuptial or postnuptial agreement in place, the court will review its terms to guide the property division unless it's found to be unfair or inadequate.
When it comes to spousal support, the judge might consider:
- Income and Assets: The judge examines the income and assets of both spouses. This includes not only their current earnings but also their earning potential and any assets they may possess.
- Duration of Marriage: The length of the marriage is crucial. Longer marriages often result in a higher likelihood of spousal support being awarded, especially if there's a significant discrepancy in earning capacity between the spouses.
- Standard of Living During Marriage: The court looks at the standard of living established during the marriage. The goal is often to enable the lower-earning spouse to maintain a similar lifestyle post-divorce, if feasible.
- Health and Age of Each Spouse: The health and age of both spouses are considered. For instance, if one spouse has health issues or is of an older age and less capable of finding employment, this might influence the decision.
- Child Custody and Support: If there are children involved and one spouse has primary custody, this could impact the spousal support decision. The judge might consider the financial needs associated with caring for the children.
- Education and Employability: The judge assesses the education, job skills, and employability of each spouse. If one spouse sacrificed career opportunities to support the other's career or to care for the family, this could influence the decision.
- Contributions to the Marriage: Contributions made by each spouse to the marriage—financial, homemaking, or otherwise—are taken into account. This includes factors like supporting the other's career advancement or sacrificing personal opportunities for the family.
- Other Financial Obligations or Debts: Existing financial obligations or debts of each spouse can also impact the decision on spousal support.
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An experienced family litigator can better represent your interests in court and voice your concerns as a parent and former spouse. Litigation may seem daunting, but you can trust that Berkman Bottger Newman & Schein is well-prepared to take your divorce matters to court. We will discuss a plan of action with you and champion your needs and goals in the courtroom.
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