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Divorce proceedings Q&A

September 2017 | Allan E. Fogel, Esq.
We often get calls to the National Legal Office hotline with questions related to divorce proceedings. The following Q&A offers general guidance about this topic from some of the more frequently asked questions that we receive.

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

Answer: No. Living separate and apart informally without any written agreement is not considered a 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 passes away during such an informal separation, the surviving spouse has inheritance rights.

Q: My spouse and I don’t 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.  If one party alleges that 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, and my two children reside with him/her. What are my child support obligations?

A: Child support in New York State is controlled by the Child Support Standards Act, which established guidelines for the payment of child support. The computation works as follows for the first $130,000 in combined parental income: The parties’ gross incomes are added together and FICA tax (7.65 percent) is deducted; each party’s pro rata share of the total is then computed.

For example: A husband with an annual income of $30,000 less FICA of $2,295 would compute to $27,705. A wife with an annual income of $20,000 less FICA of $1,530 would compute to $18,470. The husband’s pro rata share would be 60 percent while the wife’s pro rata share would be 40 percent.

The combined total income is multiplied by 17 percent (for one child), 25 percent (for two children), 29 percent (for three children), 31 percent (for four children) and 35 percent (for five children). In the example above, the combined total of $46,175 would be multiplied by 25 percent for support of two children; the combined parental child support obligation would be $11,543.76.

If the children reside with the wife while the husband is the non-custodial parent, he would pay 60 percent of $11,543.76 to the wife (or $6,926 per year) since his income makes up 60 percent of their combined incomes. Child support may also be paid on combined incomes over $130,000 subject to various factors. You should always discuss this with an attorney before going to court or signing any divorce or separation papers.

Q: My youngest child just turned 18 years old. Can I stop paying child support to my ex-spouse?

A: No. 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.).

Q: I inherited money from my mother when she passed away. Does my spouse get any of this if we were to get a divorce?

A: If you did not put the inherited money into joint names with your spouse, your spouse would not share in the inherited money; 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.

Q: My spouse and I are divorced. He or she pays child support but is always late
with payments. What recourses do I have?

A: You should file a Petition in Family Court to have support paid by Income Deduction Order through the Support Collection Unit. By doing this, child support would be garnished from the payer’s salary each time that he or she is paid.

Q: My spouse has a family major medical plan provided by his or her employer. If we were to get divorced, can I continue to be covered by my spouse’s employer-provided health insurance plan?

A: No. You cannot remain covered by your spouse’s medical plan after a divorce; however, you do have the right to continue the benefits under COBRA coverage. The employer would be required to provide the documents necessary to continue coverage and there would be a monthly cost associated with it.

Q: My parents gave me $20,000 so my husband and I could purchase a house. If we were to get divorced, what would happen to that money?

A: A gift to one party during the marriage is considered separate property. However, once that gift is used to purchase a jointly-owned asset such as a house, the gift would lose its identity as separate property in most cases and each party to the marriage would have an equal claim to the money.

Q: Our 15-year-old son has been skipping school, coming home at all hours of the night and spending time with other children that I believe are a bad influence. What can I do?

A: While there may be certain counseling options available, you may also file a Petition in Family Court to have the child declared a “Person in Need of Supervision” if the child refuses to follow your rules (otherwise known as a PINS Petition). The Court then has the power to set guidelines and the child can be removed from the home and ordered into a residential facility if he or she fails to abide by those guidelines.

Q: My wife has told me that she is moving to Florida, along with our two pre-school-aged children, to live with her parents. Can she do this without my consent?

A: No. While a parent can move wherever he or she wishes, the children may not be moved without consent of both parents or through a court order.

If you have any questions regarding divorce proceedings, we encourage you to contact your Legal Service Plan’s National Legal Office.