Divorce & Family Law Questions

I’ve been served with a divorce complaint; what now?

Once you have been served with a divorce complaint, you have 20 days to answer if you were handed the complaint personally or 30 days to answer if you were served in a different manner. If you fail to timely answer the complaint, a default judgment may be entered against you, which means that the court may grant your spouse the relief he or she is seeking in the complaint. It is, therefore, imperative that you contact a lawyer immediately after being served with a complaint so that your legal rights may be protected. Upon commencement of a matrimonial action in New York state, when the plaintiff serves the complaint, he/she must also serve the defendant with a copy of certain automatic orders.

The automatic orders are binding on the plaintiff upon filing the complaint with the court and upon the defendant when he or she is served with a copy of the automatic orders. The automatic orders prohibit either party from dissipating assets during the action, from incurring unreasonable debts during the action and from removal of family members as beneficiaries on insurance policies during the action. Failure to comply with the automatic orders may be deemed a contempt of court. This is another reason why it is imperative to contact a lawyer as soon as you are served with a complaint and the automatic orders – you want to learn your legal rights and options as soon as possible so you can determine how to proceed.

Can I leave the marital home?

Either party can choose to leave the marital residence; however, it is important that an attorney be consulted before making this or any other major change in your circumstances. In many cases, leaving the marital residence may have serious negative consequences to the person leaving. This is particularly true if the person leaving is seeking custody of the children but chooses to allow the children to remain in the residence with the other parent. Departure from the home may also create an otherwise avoidable financial burden for both parties as a court will likely continue to hold the party who left the marital residence liable for some or all of the carrying charges of the marital residence even though that party is residing elsewhere.

What is an annulment? Can I seek to annul my marriage rather than obtain a divorce?

An annulment is a finding by a court that a marriage is void or invalid as though it had never occurred. Generally, either spouse can bring an action to annul a marriage on any of the following grounds: either spouse is incurably incapable of having sexual intercourse; either spouse had not reached the age of legal consent (18) at the time of the marriage. A marriage between persons under 18 may be annulled at the discretion of the court if one of the spouses is still under 18 and wants an annulment.

An annulment is not available if the underage spouse chooses to live with the other spouse after turning 18; the spouse is diagnosed with incurable insanity for at least five years after the marriage; either spouse could not give actual consent to the marriage as a result of some mental incapacity or deficiency; either spouse consented to the marriage as a result of the force or duress of the other spouse; or the spouse seeking the annulment was fraudulently induced into consenting to the marriage. An action to annul a marriage, as opposed to an action for divorce, requires a higher degree of proof and corroborative evidence from other witnesses.

What should I do if my spouse fails to pay their court-ordered support payments?

Depending upon how long your spouse is in default and how much arrears have accumulated, you may be able to serve your spouse’s employer with an income execution so that the arrears owed and future support payments are paid directly to you by your spouse’s employer. If an income execution is inapplicable, say because your spouse is self-employed, then a motion for a judgment of arrears can be filed, and if a judgment is granted, it can be executed upon by a sheriff or a marshall as against your spouse’s assets.

If all efforts to enforce the support order and collect the arrears fail, then a motion for contempt may be filed whereby your spouse will be ordered to come to court and answer as to why he or she failed to pay on time. If the court believes that your spouse has the ability to pay, the court can hold your spouse in contempt and give him/her a period of time to pay as ordered. Should the payer fail to pay as ordered, he/she may be incarcerated until such time as he/she can catch up on the ordered payments.

What can I do if my spouse fails to comply with our visitation order?

If your spouse fails to comply, or substantially interferes, with the visitation order issued in your case, and especially if you are the noncustodial parent, immediate court intervention should be sought. A motion for contempt can be filed. The motion for contempt will be heard in court, where the parties will have to appear and explain to the court why the visitation order is not being followed. Of particular concern to the court will be whether there are any additional facts that establish that the custodial parent is alienating the affections of the children from the noncustodial parent. The court will then decide whether to order any sanctions moving forward, which can include a change in the custody arrangement.

Will I have to sell my home?

The marital home is not automatically listed for sale in divorce. There are several different options parties have in dealing with the marital residence. Sale is obviously one option and sometimes based upon the parties’ finances and the costs involved in carrying the marital residence. Another option is for one spouse to buy out the other. Such a buy-out is often accomplished by trading the equity in the home against the value of other marital assets. Another option is a deferred sale, that is, maintaining the children in the home until the children graduate high school or some other date or event occurs, with the home then being listed for sale with the net proceeds from the sale being divided between the parties pursuant to whatever agreement they enter into.

Will my spouse have to pay my legal fees if he/she is the one who wants the divorce?

The answer is “no.” Whether one spouse must contribute to the other spouse’s legal fees is not governed by who wants, or files for, the divorce but rather by factors set forth in a statute and in case law. Those factors do not include who wanted the divorce or the fault of any spouse. Instead, the law in New York focuses on the income and assets of each of the parties. The statute in New York provides that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” How much fees a court may award lies in the court’s discretion and, in exercising the court’s discretion, the court shall, in reviewing the income and assets of each party, seek to assure that each party shall be adequately represented.

I’m hesitant to file for divorce because my spouse is the wage-earner. What can I do?

A marriage is an economic partnership, and the noneconomic contributions of a nonworking spouse may be just as valuable as your spouse’s economic contributions. There is a likelihood that you will be entitled to spousal maintenance, both during the pendency of the divorce action and for a period of time after the divorce is granted. A wage-earner must always continue to support his or her children. In addition, you may have rights to your spouse’s deferred compensation like a pension plan and 401(k). We can also make an application to the court to secure an award of temporary legal fees so as to enable you to prosecute your action. While finances are understandably a concern in deciding whether to divorce, finances do not have to imprison you in a marriage that is no longer desirable.

Are common-law marriages valid in New York?

Common-law marriages are not recognized as valid marriages in New York state no matter how long a couple has been cohabitating. Such marriages were abolished in New York by law since 1933. However, all states are required to recognize valid marriages from other states, including those created from common-law marriage arrangements. New York will, therefore, recognize a common-law marriage that is valid in the state where it was contracted. Currently, 10 states, namely Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and Utah, as well as the District of Columbia, allow common-law marriages. The law to be applied by New York in determining the validity of an out-of-state alleged common-law marriage is the law of the state where the marriage purportedly occurred.

Can I obtain a custody or child support order if I’m not married to the mother/father?

When it comes to children, New York is unconcerned with the marital relationship of the parents. All of the protections of the child support laws and rules regarding custody and visitation are available.