Some Basic Legal Questions
Everyone has questions when it comes to navigating the legal system. New York attorney Daniel Sperrazza has answers for you for the most commonly asked questions that he's seen in his experience as a New York divorce attorney. Mediation and litigation can be confusing. Here are some answers for you regarding New York's legal system.
Property division, child support, and custody
What factors does the court consider to divide marital property?
New York State courts consider the following criteria in property division:
Length of the marriage
Either person's prior marriages
Each person's age, health, station, income, vocational skills, employability, estates, liabilities, and needs
Contribution by one spouse to the education, training, or increased earning power of the other spouse
Opportunity to acquire future income and assets
Sources of income, including medical, retirement, insurance, and other benefits
Services rendered as a parent, wage earner, or homemaker
Value of each person's property
Standard of living established during the marriage
Tax consequences of the distribution
Custodial parent designation
Am I entitled to part of my husband's business?
Generally, an asset such as a business that a spouse owns prior to marriage is considered ''separate property'' and would be owned by the spouse who started the business. But if the business has appreciated during the marriage, the appreciation value may be considered marital property.
A New York attorney experienced in both business law and divorce law is best equipped to help you find creative and reasonable solutions for your property division matters. Contact Daniel J. Sperrazza, Esq. to schedule your consultation today.
If my husband and I cannot agree on the division of certain household items, will we have to litigate the division?
Most divorce court judges and lawyers try to prevent people from litigating the division of household items, because it often will cost more money in legal fees to fight over those items than it would to buy new ones. But if you and your ex-husband cannot agree, it is likely you will need to seek legal help, because your property settlement will not be complete until these items are divided. The judge will simply divide them in a manner neither of you like.
In order to avoid court entirely, you may be able to attend mediation to solve your problems. Here, you, your spouse, and an impartial third party discuss your divorce matters and combine efforts to reach an agreement on
My ex is behind on alimony and child support. What recourse do I have?
You can go to the court clerk's office in the court that ordered child support and request the clerk issue a garnishment against the supporting parent’s wages. To do this, you need to know your ex's place of employment, address, and Social Security number. If your ex is at least one month behind, the court sends a garnishment to the employer and the support will be taken out of his or her paycheck. You could also go after your ex's property, but this is a longer process and might not be as satisfying, since cars and homes are often leased and mortgaged. Another option is to file a petition for contempt and get an order to show cause why the payments are not being made. This puts your ex back in court. A skilled family law attorney can review the options with you and guide you to the best solution for your needs.
I will be moving to another state soon, with permission from my ex. The cost of living is higher in the new location. Will this entitle me to an increase in child support?
Depending on the change in your income, you may have cause to modify the child support figure. If the court were to modify the amount of child support because of an increase in living expenses, it would most likely have to find that the modification is in the best interests of your children. Keep in mind, though, that any visitation expenses for your ex-husband increase due to travel, etc., and may offset any increase in living expenses on your part.
My income has increased since the court ordered child support. Can I be penalized for not paying more because of my increased income?
In most situations, child support increases are only retroactive to the date of the filing of a motion to modify child support. However, many courts and child support collection agencies require noncustodial parents to report their income on a regular basis to ensure smooth modification proceedings. If your orders require that, and you failed to do so, you might have some problems. If your orders do not require such, normally there is no obligation to pay anything more than what was ordered.
Mediation and collaborative law
Is the agreement reached in mediation or collaborative divorce legally binding?
Yes. The dissolution agreement you draw up in mediation or in collaborative divorce sessions is a legally binding document, the terms of which are enforceable by a court.
Will an attorney strongly advocate for me in collaborative divorce?
Since collaborative divorce is a more peaceful means of conflict resolution than resolving matters in court, your lawyer will most likely not take on an aggressive litigator persona. Instead, your attorney will guide you to seek solutions that work for you and your family and step in to ensure that the agreements are fair for you. Though this process in non-adversarial, your lawyer is still your advocate and should do everything possible to maintain a fair, civil forum to calmly solve your divorce matters to facilitate a healthy relationship with your spouse going forward.
Is mediation right for me?
I find that mediation and collaborative divorce are the best ways to dissolve a marriage. But, there are some couples who are not right for divorce mediation. These couples generally have elements that created an unfair relationship during the marriage, as well as:
Physical, mental, or emotional abuse
Vengeful attitude toward divorce
Probably reluctance to full disclosure of financial information
Unwillingness to compromise
Every divorce situation is different. For legal advice tailored to your particular family, please contact me at Daniel J. Sperrazza, Esq. online or by phone at (716) 854-2220.