Divorce And Family Law Questions

Divorce and other family law disputes can be some of the most emotional and challenging matters you encounter. Chances are you have many questions about what to expect and how to proceed amid these matters. At Jane K. Cristal, P.C., we’ve been helping people across Mineola, New York, with their family law and divorce-related issues for over 35 years.

We compiled some of the most frequently asked questions we’ve heard over our years of practice so you can get some answers quickly. That way, when we meet for an initial consultation, we can focus on more of the specific details of your situation. Below are the most common questions we hear from our clients:

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 differently. If you fail to answer the complaint promptly, a default judgment may be entered against you, which means that the court may grant your spouse the relief they are seeking in the complaint. Therefore, you must 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 specific 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, incurring unreasonable debts and removing family members as beneficiaries of insurance policies. 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 quickly as possible to determine how to proceed.

Can I leave the marital home?

Either party can choose to leave the marital residence; however, an attorney must be consulted before making this or any other significant change in your circumstances. In many cases, leaving the marital residence may have serious negative consequences for 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 court’s discretion 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 coercion 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 more 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 income execution is inapplicable, say because your spouse is self-employed, a motion for a judgment of arrears can be filed. If a judgment is granted, it can be executed by a sheriff or a marshal 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 why he or she failed to pay on time. If the court believes your spouse can pay, the court can hold your spouse in contempt and give him/her a period to pay as ordered. Should the payer fail to pay as ordered, he/she may be incarcerated until 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 must appear and explain why the visitation order is not followed. Of particular concern to the court will be whether any additional facts establish that the custodial parent alienates the children’s affections 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 when dealing with the marital residence. Sale is one option and is sometimes based on the parties’ finances and the costs of carrying the marital residence. Another option is for one spouse to buy out the other. Such a buyout 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 under whatever agreement they enter into.

Will my spouse have to pay my legal fees if they are the ones who want 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 fee a court may award lies in the court’s discretion, and in exercising the court’s discretion, the court shall review the income and assets of each party and 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. You will likely 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 apply to the court to secure an award of temporary legal fees 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 have been abolished in New York by law since 1933. However, all states must 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, Utah and 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 parents’ marital relationship. All of the protections of the child support laws and rules regarding custody and visitation are available.

Have More Specific Questions? Schedule A Consultation.

We hope that by answering these frequently asked questions, you can feel at ease as you navigate your divorce or family law dispute. If you want to learn more about how we can help you, schedule a free initial consultation today. Call us at 516-744-1910 or visit our contact form.