Our Process If you would like to inquire about becoming a FLC client the first step you should take is to call our office and set up a consultation with one of the attorneys. During your consultation, we will ask you to tell us, in your own words, the matter that has brought you to our office. At the consultation, we will discuss your legal options while taking into account your ability to pay and your personal financial circumstances. We will also let you know if we are able to take your case, and explain what you would be charged for our legal representation. Legal Services We handle both contested and uncontested divorce matters and have experience in both settlement and complex litigation in an array of different issues surrounding family law and matrimonial matters including, but not limited to, grounds, equitable distribution, spousal support, child custody, parental access, child support, and orders of protection. In Family Court, we handle custody, parental access, paternity, child support, spousal support, and orders of protection. • Please note that this office does not take cases that involve ACS as the presentment agency in abuse or neglect proceedings. New York Family and Matrimonial Law The following information was prepared by Patricia Ann Fersch, Esq., with the objective to assist the general public by giving them basic information concerning Family and Matrimonial law in New York. It is not intended to take the place of legal advice with this office or any attorney of your choosing and you should not rely on this information as a substitute for sound legal advice that takes into account your personal circumstances and the specific facts surrounding your matter. Divorce: Grounds: New York is a grounds state. This means that you cannot get a divorce on the grounds of irreconcilable differences, or in other words, because you and your spouse don’t get along or simply don’t want to be married anymore. You can however enter into a separation agreement, signed and notarized as if it were a deed, and in one year either party can sue the other for a divorce on the ground of conversion of the separation agreement. The other grounds for divorce are cruel and inhuman treatment, adultery, imprisonment, and abandonment. Abandonment is probably the most common ground in New York and comes in two forms: constructive and actual. Constructive abandonment is when a party refuses to have sexual intercourse with the other for one year or made the marital residence dangerous to the other party’s well being so that he/she had to leave. Actual abandonment consists of a party leaving the marital residence without intent to return and without just cause for leaving. The grounds for divorce are not considered in other aspects of the matrimonial action. In other words, a spouse is not punished by being ordered to pay maintenance because he/she committed adultery. A Court may consider conduct in making an award of equitable distribution but it must be egregious conduct such as battering the spouse’s face with a barbell in the presence of the children or attempting to murder a spouse. Havell v. Islam, 301 A.D.2d 339 (1d Dept. 2002). Equitable Distribution: Marriage is considered an economic partnership whether or not property is titled in your name. All property that is obtained during the marriage in considered marital property which includes both assets and liabilities. This includes both spouses’ employment income, pensions, 401K’s, IRA’s, gifts to the marriage, interest increases from marital investments, bank accounts opened no matter whose name they are in and all real property purchased no matter whose name it is in. Professional licenses and degrees obtained during the marriage are also marital property. Property held by either party prior to the marriage is considered separate property. An inheritance received during the marriage by either party is separate property. Proceeds of a personal injury suit received during a marriage are separate property. Separate property can become marital property in whole or part. Custody: Custody is determined by either an agreement between the parties or by a court determination. New York generally recognizes joint custody only by agreement of the parents. Joint custody presumes that both parties will discuss the issues in the child’s life and reach an agreement or a compromise as they would in an intact family. Joint custody does not necessarily mean that the child lives in two households 50% of the time. It means that parties share major decision making including, medical, educational and religious upbringing. The child normally resides with one parent and the other parent has reasonable parental access. If the parties cannot come to an agreement, the court, after a trial, will determine who should be the custodial parent based on the child’s best interests. There is no gender bias or tender years preference as to custody. Fathers have the same right of obtaining custody as do Mothers. Both parents have an equal right to pursue custody. All custody decisions are based upon the best interest of the child. The marriage of the parents has no impact on rights of custody. Both married and unmarried parents have the same legal rights to custody so long as paternity has been established. Any child born to a marriage is presumed to be a child of the marriage even if the parents were separated at the time of the conception and the father of the child is not the mother's husband. The husband will be presumed to be the legal father. Child Support: General: Child support in New York is governed by the Child Support Standards Act. This statute sets forth specific guidelines for how much child support each parent is obligated to pay. The non-custodial parent is required to pay a specific percentage of his/her adjusted gross income (gross income – social security taxes, medicare taxes, NYC local taxes = AGI). The percentage is determined by the number of children. The child support percentage for one child is 17%, for two children is 25%, for three children is 29%, for four children is 31%, for five of more children is no less than 35% of the combined parental income. The non-custodial parent does not cease payment of child support for the time the non-custodial parent spends with the child. The parties may agree to deviate upward or downward from the statutory requirement, but the reasons for deviation must be set forth with specificity. The statute includes a list of acceptable reasons for a deviation. Unless the child(ren) is otherwise emancipated, child support continues until age 21. Arrears: You should note that if you cannot afford to pay a child support order you must file for a downward modification immediately upon your inability to pay. If you do not, and you go into arrears, there is almost no way to get the arrears dismissed even for good cause shown. Paternity: If you are not married at the time of the child's birth, it is necessary to establish paternity. This can be done two ways: at the hospital where the child is born by "acknowledging paternity" or through court intervention at the Family Court by petitioning the court for an "Order of Filiation". Having your name on the birth certificate is not enough to establish paternity. Once paternity is legally established, you have the right to custody/parental access of your child and the legal obligation to support the child. Spousal support: There is no formula for calculating spousal support. New York generally subscribes to a theory of remedial spousal support payable for a limited period of time for the supported parent to become employable. Spousal support is based upon many factors, including but not limited to, the length of the marriage, the standard of living during the marriage, each spouses health and age, each spouses ability to be self supporting, and the paying spouse's ability to pay. Parental Access: The non-custodial parent is entitled to parental access with the child. It is both the parent's and the child's right to a relationship with each other. Courts favor a child having two involved parents. The custodial parent has the responsibility of insuring that the relationship between the child and the non-custodial parent is encouraged. A custodial parent who unreasonably discourages or interferes with the relationship between the child and the non-custodial parent can lose custody of the child. Relocation: A non-custodial parent can relocate and has no obligation to exercise parental access with the child. A custodial parent can only relocate with the non-custodial parent's consent or court permission. If the non-custodial parent does not consent to the relocation, then the custodial parent must seek court intervention. The court may refuse to consider the application in certain cases. If the court does consider the application, the relocating parent must show that it is in the child's best interest to relocate.