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Law office of David L. Martin Esq.
David Martin

125-10 Queens Blvd. Suite 9
Kew Gardens NY 11501
(516) 294-8886

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Mineola Divorce Lawyer David L. Martin
Nassau County Divorce Lawyer

Divorce... A Brief Introduction

A marriage is viewed as the economic union of two individuals. It does not matter who makes it or spends it during the time of the marriage because the parties are seen as an economic union.

The purpose of a divorce is to break up the economic unit. The parties to a divorce will put everything that occurred during the marriage on the table, and fairly or equitably divide it between themselves.
Before I discuss the issue of equitable distribution you need to be aware of the fact that a divorce action has two components. The first issue is grounds for divorce. New York is a fault state. You need a reason to get divorced in the State of New York. Irreconcilable differences is not a grounds for divorce in New York.
Domestic Relations Law S. 170 defines the grounds for divorce in New York. The grounds for Divorce in New York are as follows:

1. Constructive Abandonment: This is where one spouse is ready willing and able to have sexual relations and the other spouse refuses for a period exceeding one year from the date of filing. The spouse bringing this cause of action must further claim that they made requests to the other spouse to resume sexual relations, but that request was wrongfully refused. There is also a further requirement that the spouse refusing to have sexual relations have a physical impairment that would prevent them from engaging in marital relations.

2. Actual Abandonment: This is where one spouse locks the other spouse out of the marital residence or leaves the marital residence and refuses to come back. Again, the abandonment must be in excess of one year from the date of the filing.

3. Cruel and Inhuman Treatment: Cruel and inhuman treatment of the Plaintiff by the Defendant exists when the conduct of the Defendant so endangers the physical or mental well being of the Plaintiff as to render it unsafe or improper for the Plaintiff to co-habit, or remain with the Defendant.

4. Adultery: This exists when one spouse has sexual relations outside the marriage.

5. Confinement: This exists when the spouse is in State prison for a period of three or more consecutive years after the marriage.

6. That the husband and wife have lived separate and apart pursuant to a separation agreement or a Judgment of separation for a period exceeding one year.

I have had occasions where potential clients have told me that none of the grounds apply to them. In that case you can look at doing a separation agreement. A separation agreement is a marital contract between the parties. Like any other contract the agreement must have the basic elements of a contract which is offer, acceptance and consideration. Once negotiated it is signed by both parties and notarized.
In the event that you and your spouse do not have the ability to communicate and negotiate a settlement then attempting to enter into a separation agreement is a waste of time.
I use separation agreements for three particular reasons:
The first is where the parties want to separate but believe that there is a possibility of reconciliation. In this instance, they resolve all of their financial issues now. The separation agreement is filed in the County clerks office where it sits for one year. At any time the parties can go remove the document and destroy it. If they do so then they are in the same position that they where in before they entered into the agreement.
The second case I use it in is when one of the spouses has medical issues. As a matter of law a person loses there spouses health insurance coverage upon the granting of a Judgment of divorce. In a case where a separation agreement has been entered into the parties remain married and therefore the spouse remains on the health insurance coverage.
The last is when the parties have no grounds for divorce but want to separate and have an ability to negotiate a written settlement.

Let’s now discuss the second component of a divorce which is equitable distribution. For purposes of determining what are marital assets and debts, the courts generally use a start date and an ending date. The starting date is the date of your marriage and the ending date is the date that one of you files for an action for divorce. Any assets that are obtained, or any debts that are incurred during this time period by either party are marital assets and debts.

Under the issue of equitable distribution here is a list of the issues that come up:

a. The disposition of the marital residence;
b. A division of deferred compensation plans;
c. A division assets such as stocks, bonds, mutual funds, vacation homes, etc;
d. A division of marital debt such as credit cards;
e. A division of vehicles that the parties own including who is responsible for car payments and insurance;
f. A division of the enhanced earnings potential from the obtaining of an advanced degree by one spouse;

The issue I left out of the list above is that of the children. A divorce involving children raises three issues as to the children. The first is the issue of custody, the second is the issue of visitation and the third is the issue of child support.
Let’s start with custody. There are two types of custody in the state of New York. The first is physical custody and the other is legal custody. Physical custody asks the question, who are the children going to physically live with? Legal custody deals with decisions regarding health, education and welfare. If the parties have joint legal custody it means that each parent will fully participate in making those decisions for the minor child. The Courts will tell you that joint legal custody only works when the parties have an ability to communicate.
The second issue is visitation. There are two ways to deal with this issue. The first is we can say that the non-custodial parent will have liberal visitation away from the marital residence as agreed to between the parties. The other approach is to sit down together and prepare a detailed visitation schedule. That schedule would include regular visitation, holidays, summer vacations, birthdays etc.
The third issue is child support. The amount of child support that a non custodial parent pays to the custodial parent for the basic support of the minor children is governed by statute. Domestic Relations Law Section 240 covers this area. The child support is based upon combined parental income, all income up to $80,000.00 is mandatory any combined income over $80,000.00 is discretionary to the court. The percentage of adjusted gross income that the non-custodial parent must pay is as follows: 1 child 17%, 2 children 25%, 3 children 29%, 4 children 31%, 5+ children 35%.
After children I find that the disposition of the marital residence, where there are children, is one of the tougher parts of the divorce process. For the most part it takes two incomes to be able to own and maintain a house in the New York area. Where you take away the income from one spouse it makes it difficult, if not impossible, for the other spouse to maintain the marital residence. On the other hand, the parties for the most part don’t want to move the children out of their current school district and away from their friends. I have a number of suggestions for how to deal with this issue.
There is a lot more to talk about, but this is just an introduction. I have been practicing law for over 17 years and have devoted the last ten years almost exclusively to divorce and family law. Give me a call and I would be glad to set up an appointment for a free consultation.

Sincerely,
David L. Martin, Esq.

email: mzlaw@aol.com or call 516 294-8886

Kew Gardens Divorce Lawyer David L. Martin
Queens New York Divorce Lawyer

 


Kew Gardens NY Divorce Attorney

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