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Divorce 101 Q&A: Part 1

May 2019 | Allan E. Fogel, Esq. & Brett A. Potash, J.D.
If you are considering getting a divorce, you should begin by meeting with an attorney to discuss your rights and the legal ramifications of going through with one. The following Q&A may also prove helpful as you go through this often arduous process.

Question: What documents should I show my attorney at an initial consultation?

Answer: Your attorney may request specific documents for you to bring with you to an initial consultation, but it’s always a good idea to be over-prepared rather than under-prepared. Bring your most recent tax returns belonging to you and your spouse, recent pay stubs, mortgage statements (if any), any pre-nuptial/post-nuptial agreement, or any other legal order/agreement involving you and/or your spouse. And of course, bring a list of questions you may have.

Q: What do phrases such as “marital property” and “separate property” mean?

A: Property acquired by either spouse while you are still married is called “marital property.” Property acquired by either spouse before the marriage or after divorce is known as “separate property.” Don’t be fooled by the phrase “property,” as it refers to nearly anything tangible or intangible (such as a house, vehicle, stocks, bonds, etc.).

Q: I inherited money from my mother when she died. Is my spouse entitled to any of this if we were to get divorced?

A: If you did not put the inherited money into joint names with your spouse, he or she will not be able to share in the inherited money (as it is considered separate property). However, if your spouse helped you invest the money and assisted you in managing the investment, he or she may be entitled to part of the increase in its value (rendering it marital property).

Q: My spouse and I have not lived together for 10 years. We have no agreement in writing and no divorce action was ever commenced. Are we legally separated?

A: No. Living separately and apart informally without any written agreement is not considered legal separation, and each party may have rights to property acquired by the other during the period of time the parties lived apart. In addition, if one spouse dies during such an informal separation, the surviving spouse has inheritance rights.

Q: My spouse and I do not get along. We still live together as husband and wife, but occupy separate rooms and don’t do anything together. Am I entitled to a divorce on the basis of “irreconcilable differences?”

A: Yes. New York State is now a “no-fault divorce” state. Therefore, if one party alleges the marriage has been “irretrievably broken” for at least six months, the court can grant a divorce on that basis.

Q: My spouse and I live apart with our two children residing with my spouse. What are my child support obligations?

A: Child support in New York State is controlled by the Child Support Standards Act, which establishes guidelines for the payment of child support.  The computation works as follows for the first $148,000 in combined parental income:

The parties’ gross incomes are added together and FICA tax (7.65%) is deducted. Each party’s pro rata share of the total is computed.

  • Husband – $30,000 income less FICA of $2,295 = $27,705
  • Wife – $20,000 income less FICA of $1,530 = $18,470
    • Husband’s pro rata share is 60%; wife’s pro rata share is 40% .
    • The combined total income is multiplied by 17% (for one child), 25% (for two children), 29% (for three children), 31% (for four children), and 35% (for five children).
    • The combined total of $46,175 is multiplied by 25% for support of two children. The combined parental child support obligation is $11,543.76. If the children reside with the wife and the husband is the non-custodial parent, he pays 60% of $11,543.76 to the wife (or $6,926 per year) since his income makes up 60% of their combined incomes.

*Child support may also be paid on combined incomes over $148,000 subject to various factors. You should discuss this with an attorney before going to court or signing divorce/separation papers.
Q: My youngest child just turned 18 years old. Can I stop paying child support to my ex-spouse?

A: No. In New York State, the duty to support the child continues until the child reaches the age of 21, unless the child becomes emancipated before age 21 (i.e.: is self-supporting, joins the military, gets married, etc.).

Stay tuned to the September 2019 issue of the Preventive Law Guide for part two of this Q&A.

Prior to making any legal decisions that may affect your rights, please contact your Legal Service Plan’s National Legal Office at 800-832-5182.