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
What is an annulment? Can I seek to annul my marriage rather than obtain
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;
- 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, and/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 payor 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 non-custodial
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 which establish that the custodial
parent is alienating the affections of the children from the non-custodial
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,
the only option. 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 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 non-economic contributions
of a non-working 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 401k.
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: 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
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.
Contact Nassau County divorce attorney Jane K. Cristal for answers to your specific questions and concerns about divorce and