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A divorce can be one of the most stressful life experiences anyone will ever go through. While some couples are able to come to a friendly agreement and consensually dissolve the marriage, many divorces do not go so smoothly. If you are going through a contentious divorce, it is absolutely crucial that you have the right legal team backing you up. Even in equitable distribution states like New York, your property, wages and the means of your livelihood are put at risk in a divorce. The right lawyers can help you negotiate a favorable divorce settlement and avoid the worst pitfalls of a court-decided divorce proceeding.
Things get tricky when property and kids are involved
The harsh truth is that divorces involving childless couples with few assets are rarely overly contentious. It is only when large quantities of money and kids get involved that the stereotypical bitter divorce becomes reality. Unfortunately, significant assets and child custody disputes readily produce the worst kind of contentious divorces. These can be an interminable nightmare for the participants.
This is where a good legal team can make the difference between a life of misery and being able to quickly put the failed marriage behind you, able to keep what is rightfully yours and to have access to your children.
The state of New York is an equitable distribution state. That means that property in divorce proceedings is supposed to be given to whichever spouse earned it or bought it. However, in practice, this is often not how the jointly owned assets are actually distributed among the spouses. If you are involved in a divorce where your spouse has hired an attorney, you need to do the same. This is particularly true in marriages where one spouse was the primary bread winner. Once attorneys are involved and the proceedings have turned contentious, the chances of you losing most of your assets, without hiring an attorney of your own, is very high.
The same is true with respect to child custody. While most marriages result in what is technically termed joint legal custody, which means that both parents have joint responsibility over all major life decisions affecting the children, in practice, one parent usually ends up with effectively exclusive residential custody. Arrangements where the children live with one parent, close to all of the time, often gives rise to de facto exclusive legal custody, or something close to it.
The right legal team can help protect your rights as a parent, ensuring that you are able to be a part of your kids’ lives and are able to both see them regularly and assert your rights as a parent over the crucial decisions in their lives.
No-fault divorce means it’s more important than ever to hire a good lawyer
The benign-sounding no-fault divorce law has made it easier than ever for a spouse who has either monetary or custodial incentives to initiate a divorce to do so. This often works severely against the interest of the primary income earner, giving the other spouse an opportunity to see how much cash and prizes they can get by playing the divorce game. It is, therefore, more important than ever to hire a good lawyer to protect your interests in a divorce.
Is a separation agreement enforceable?
If you have encountered marital problems, you and your spouse may have reached a juncture at which you are considering a separation. You may not want to divorce, for one reason or another. Fore example, you may feel you should not divorce for religious reasons. Whatever the underlying situation, you may have concluded that separating is advisable at this juncture in time as opposed to pursuing a divorce case.
As part of the process of considering a separation, you may be thinking both of a more informal arrangement or of obtaining a legal separation via a court proceeding. As you weigh and balance your options, you may have questions about whether a separation agreement is legally enforceable.
At the outset, you need to understand that there are two types of separation agreements. First, there is a separation agreement reached between spouses more informally. Although an agreement of this nature needs to be committed to writing, it is not part of a court proceeding.
Second, there is a separation agreement that is an outgrowth of a court proceeding. Different procedures are necessary to obtain judicial enforcement of these two different types of separation agreements.
Separation Agreement Between Spouses
Provided it has been properly prepared and executed by the spouses, a separation agreement between spouses not a part of a legal separation court proceeding is nonetheless a binding contract. In other words, assuming the agreement was properly drafted and signed, if it is breached, a spouse can file a case in court seeking enforcement or damages due to the breach of the agreement. This would be like virtually any other contract dispute that ends up in court.
Separation Agreement in Legal Separation Court Proceeding
If a separation agreement is reached between spouses as part of a legal separation proceeding, there is not need for a spouse to file a court case to seek enforcement of the contract. Rather, a spouse who believes the other party has breached the terms of a separation agreement need only file what is called a motion to enforce in the legal separation case.
When a separation agreement is made during a legal separation court proceeding, the court itself ultimately adopts that contract as part of the court order or decree in the case. Thus, if a party to the separation agreement breaches it, that individual is not just violating the terms of a contract, but is violating a court order as well.
The laws in each state govern contracts generally and legal separation agreements specifically. In addition, you need to appreciate that not every state in the country has a special legal separation proceeding. In those states, if a couple wishes to separate, they must do so more informally and without access to a special court process.
Take a Proactive Approach
You need to take a proactive approach to protecting your rights an interests when you determine that the terms of a separation agreement have been violated or breached. Indeed, even if an initial breach might seem somewhat minor, keep in mind that you can end up on a slippery slope with your spouse. You do not want to end up in a situation where your spouse is pushing the envelope time and again via ever mounting violations of the terms and conditions of a separation agreement.
Retain a Legal Separation Lawyer
If you are thinking about separating from your spouse, you are well-advised to consult at attorney. A legal separation lawyer can provide you information about what your options are in your jurisdiction. As a general rule, a lawyer does not charge a fee for an initial consultation.
If you already have a separation agreement in place, of one type of another, you need to consider seeking legal assistance if you believe it has been breached. A skilled, experienced legal separation attorney can advise you on what steps you can and should take to protect your legal interests when this type of agreement has been breached.
As an aside, if you are contemplating separation, retaining counsel at the outset is a wise course. With a well-drafted separation agreement, you can avoid a good many problems in the future.
When you begin a divorce, the first question that’s probably on your mind is who receives custody of the children in a divorce. Your children are what’s most important to you. It’s not surprising that custody of the children is the biggest question in a divorce. Here’s what you need to know about who receives custody of the children in a divorce:
Child custody in New York depends on the interests of the children
The interests of the children is what matters most when the court determines custody. The court looks at the situation involving both parents and all of the circumstances involved in order to decide what circumstance benefits the children the most. A child custody decision can be quite generic, or it can be very detailed if it benefits the children. The court may award joint physical custody, but there’s no requirement that the court award joint custody even if both parents are basically fit to care for the children.
What does the court consider when it determines custody?
Although the court that hears the case can look at the entire circumstances in order to determine what’s in the interests of the children, the courts have some guidance. New York law lists some factors that the court can consider when they make a custody evaluation. These factors include:
- Who has spent the most time caregiving for the child’s needs up until this point
- Each parent’s respective parenting skills
- The ability of each parent to provide for the needs of the child considering any special needs that the child may have
- Physical health of each party
- Mental health of each party
- Domestic violence or other forms of abuse
- Substance abuse that interferes with a parent’s ability to care for the child and be a positive role model
- When each parent is available to spend time with the child
- The burden of travel on the child and the distance between parents
- Relationships with extended family members
- The ability of each parent to foster a relationship between the child and the other parent
- Any other relevant factor to the interests of the children
No one factor determines child custody alone. The court doesn’t simply go through the list and total up all of the points in order to determine who wins child custody. Rather, the court must decide how much to weigh each factor and for what reasons.
What is legal and physical custody in New York?
To talk about who gets custody of the children in New York, it’s important to understand the difference between physical and legal custody. When you talk about who gets custody in a New York divorce, you must consider that the court may not make the same decision for legal and physical custody. The court may award legal custody to both parents and physical custody to only one parent.
Legal custody allows a parent to share in decision making for the child. If the court orders legal custody to only one parent, that parent makes the significant decisions for the child throughout their childhood including choice of school and major medical decisions. The court can also order the parents to share in this decision making. The courts freely award joint legal custody if both parents are qualified.
On the other hand, even if both parents are qualified to have physical custody of the children, the court may or may not decide that joint custody is in the children’s interests. Physical custody is who has the responsibility of caring for the child on a day-to-day basis. The court can make physical custody equal or almost equal, or they can order one parent to provide care for the child the majority of the time. Usually, the court orders at least some parenting time to each parent, but in extreme cases, the court may require supervision or place conditions on parenting time for the child’s safety.
How to decide custody in a New York divorce case
The court does a holistic evaluation in order to determine who gets child custody in a New York divorce. Child custody determinations don’t depend on any one factor, but rather the entire circumstances are important. An experienced New York City divorce lawyer can help you evaluate your case for custody and build a strong case that protects your interests and the interests of your children.