Matrimonial and Family Law

Q. Can I be divorced on the grounds of incompatibility? 

A. No, not in New York State. Since New York does not have a pure no-fault divorce, on of the following grounds must exist in order for a court to grant you a divorce judgment:

Cruel and inhuman treatment:This can be physical or mental cruelty, but your spouse's misconduct must endanger your physical or mental well-being so as to be unsafe or improper for you to cohabit with your spouse. Abandonment:This may be actual or "constructive," that is, your spouse's refusal to have sexual relations, but in either event, it must be for at least one year. Your spouse must have intentionally left you, without your consent, and without your having given justification for his or her departure. Imprisonment:Your spouse must be imprisoned for at least three consecutive years. Adultery:This may be constituted by a single act or a series of acts, but your spouse will have a valid defense if he or she proves that:

(a) you encouraged the adulterous act(s)
(b) you condoned or forgave the adulterous act(s) by having sexual relations after you discovered the misconduct
(c) you failed to bring the divorce action within the prescribed statue of limitations
(d) you, too, committed adultery.

Living apart under a written separation agreement or a separation decree:You must live apart under a written agreement or decree for at least one year, and you may then sue - it's not automatic - for a divorce. You must prove to the court that you "substantially performed" the terms of the agreement or decree, and, in the case of an agreement, that it was properly executed and filed with the County Clerk.

Q. Is either one of us presumed to have a right to custody of our children?
A. No. In all cases, the "best interests" of the children will determine which of you is to be awarded custody. Neither of you is presumed to be a better custodial parent.

Q. What is "maintenance"?
A. It's what used to be called alimony.

Q. What is equitable distribution?
A. Generally speaking, apart from the statutory provisions pertaining to child support and maintenance, the equitable distribution law gives one spouse a claim to ownership of the other spouse's assets. Equitable distribution is not community property, that is, one spouse's automatic right to one-half of the other's assets. An equitable distribution award may range from the court's denial of any equitable distribution at all, to 100% of your spouse's assets, depending upon the merits of your claim. Generally, the equitable distribution laws do not permit you to make claims against property which your spouse acquired:

(a) before you were married
(b) by inheritance or gift
(c) as a result of a personal injury award, although there may be a claim for the appreciated value of these assets. The equitable distribution law does permit you and your spouse to enter into an agreement - before or during your marriage - which will be enforced by the courts in lieu of a judge making decisions on equitable distribution issues.

Q. For how long must child support be paid?
A. Generally speaking, until the child for whom the support is paid is 21 years old, regardless of the law that he or she is considered to be an adult at 18.

Q. Can a husband, as well as a wife, be awarded maintenance (alimony)?
A. Yes, if the financial circumstances warrant it. To hold otherwise would be sexual discrimination, and a violation of constitutional law.

Q. Can a wife, as well as a husband, be responsible for the other spouse's legal fees?
A. Yes, if the financial circumstances warrant it. This law, as well as the laws pertaining to maintenance and many other laws, was long ago degenderized to avoid sexual discrimination.

Q. Will the court evict my spouse from our house?
A. Yes, under the appropriate circumstances, either spouse may be awarded exclusive occupancy of the house as one of the results of a divorce action. You must keep in mind, however, that exclusive occupancy is not equivalent to ownership, and the house must ultimately be sold or transferred with the proceeds of sale being divided between each of you in a proportion fixed by the court, or by the court awarding credits to each of you under the equitable distribution laws.

Q. Is there any way to enforce an order, a garnishee, or judgment awarding me maintenance and child support?
A. There are several different methods including an income execution against your spouse's income, a money judgment, and the ultimate enforcement mechanism, an application to punish your spouse for contempt. In the latter case, your spouse may be placed in jail for non-payment or non-compliance with an order or judgment. In addition, your spouse may be responsible for the payment of your legal fees for having to initiate the enforcement proceedings.

Q. What will happen to my jewelry and our household furnishing in a divorce action?
A. These assets, as with other assets, are subject to the rules governing equitable distribution. If they were acquired by either spouse during the marriage, and are not exempted by the equitable distribution laws, they will be "equitably" distributed between each of you.

Q. Can either spouse be forced to sign a separation agreement?
A. No. A separation agreement is a contract which happens to be between a husband and a wife. As with any other contract, no one can be forced to sign n it. A separation agreement is a mutually negotiated settlement of the parties' property and marital rights.

Q. What's the difference between a separation agreement and a stipulation of settlement?
A. A stipulation of settlement is a mutually negotiated agreement between the parties which serves to settle a matrimonial lawsuit. Generally speaking, a separation agreement is entered into when no lawsuit is pending.

Q. How much maintenance and child support can I expect to receive?
A. There is no facile answer to your question, or to the same questions concerning equitable distribution. Each case must be decided on its own merits and its own facts and circumstances. The laws governing maintenance and support revolve around your and the children's "needs", and your spouse's "means" (ability to pay), but also consider many other factors such as health, standard of living, income tax consequences, the earning potential of both spouses, and last, but far from least, the statutes referred to as the Child Support Standards Act.

Q. Once I have made an agreement for child support, can it be changed?
A. In certain cases child support may be modified upward or downward, depending upon the existence of "changed circumstances," and in some cases, the very terms of the Child Support Standards Act. Each case will be decided on its own merits, subject to its particular facts and circumstances.

Q. Does the same hold true for child custody?
A. Yes, but again, the children's "best interests" will be the most important criterion.

Q. Why does it seem that legal fees are so high in matrimonial lawsuits?
A. Legal fees in matrimonial actions are not as expensive as rumor would have it when you consider that every matrimonial lawsuit involves several complex legal issues, all of which are interwoven with high passion and emotion. In most cases, a divorce or separation action is the single most important lawsuit in which you will ever become involved, and the determination of that lawsuit may affect the rest of you and/or your children's lives. Much of the time and effort spent in a matrimonial action is consumed in "discovery and inspection," a series of legal devices to uncover assets and income, and, in the final analysis, that can prove more costly than the trial itself.

Q. How do I know I'm not "getting a story" about the experience and ability of the lawyer I'm interviewing?
A. You have to fall back on your life's experience, and your ability to distinguish fact from fiction. Don't be misled by advertising puffery. Since 1966 we, at the full service law firm of Behrins & Behrins, have been involved in precedent setting, landmark decisions . . . and one of our firm's principals has been distinguished as one of The Best Lawyers in America since 1989. Come in for a consultation to judge for yourself.