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What Will the Judge Decide in My Divorce Case?

December 4, 2018 Our Blog

A divorce case may involve several elements, including division of property and debts, child custody, child support and spousal maintenance/alimony. Each aspect of a divorce is subject to specific laws that govern how a court is supposed to handle the issues. Divorce cases can be complicated and may involve important rights. Because of this, persons going through a divorce should seek legal representation from a divorce attorney.

In a divorce case, a judge may decide several issues, including the grounds for divorce, how property and debts are to be allocated, the amount of support to be ordered, and the child custody schedule.

Grounds for divorce
There must be a reason for a divorce to be entered. The most common reason is for irreconcilable differences or irretrievable breakdown of the relationship. A court may also enter a divorce on other grounds, such as adultery, fraud, abandonment, or cruel and inhuman treatment. The ground for divorce may be relevant in determining the division of property/debts and support.

Division of property and debts
In New York, marital property and debts are to be divided in an equitable, or fair, manner. This does not necessarily mean that property and debts will be divided equally. The judge can consider various factors in determining how property and debts are to be divided, including:

  • Each spouse’s income and property
  • The length of the marriage
  • Spouses age and health condition
  • Child custody situation
  • Fault or wrongdoing of a spouse
  • The liquidity of assets in the divorce
  • Ability of each spouse to meet their needs
  • Tax consequences to each spouse
  • Earning capacity of the spouse
  • Education and employment history

The judge can consider any factor that is deemed relevant to the divorce.

Property owned by a spouse prior to the marriage, received as a gift, inherited, or related to a personal injury settlement, may be considered as that spouse’s separate property and not included in the property division.

Child support and alimony
A judge may also decide the amount of child support and alimony to be paid. Child support in New York is based upon the number of children, the custody schedule and the income of the parents. The specific amount is based upon a formula that considers these factors.

Alimony, or spousal maintenance, may be ordered by a judge in certain situations where a spouse is unable to provide for their reasonable needs or requires compensation to arrive at a point where they can support themselves. A judge will consider many factors, including the length of the marriage, available assets, earning capacities of the spouses, and presence of any wrongdoing in the marriage.

Child custody schedule
If the parties cannot agree on a child custody schedule, then a judge will make that determination after hearing evidence and argument from the parties. The law requires the judge to order a schedule that is in the best interest of the children.

In deciding custody, the judge must consider any relevant factor, including:

  • Wishes of each parent
  • Wishes of the children
  • Character and circumstances of each party
  • The need to promote stability and continuity for the children
  • Domestic violence
  • criminal activity
  • Substance abuse

Typically, absent extraordinary circumstances, the judge will order a joint custody schedule. This does not necessarily mean a 50/50 schedule, rather each party will have frequent and continuing contact with the children.

How can a divorce attorney help?
Spouses who are going through a divorce should seek out representation from a divorce attorney. An attorney can help advise you about the law and how the facts of your case apply. They can represent you in court and advocate on your behalf to the judge.

An attorney will understand the legal burdens of proofs and what needs to be shown in order to obtain your desired result. They can help you gather evidence to present to the court to address the various aspects of a divorce case.

Because persons who represent themselves in court are held to the same standard as an attorney, self represented persons are often at a disadvantage. By working with an attorney you will have someone in your corner who understands the law and knows what needs to be shown. Contact a divorce attorney to schedule a consultation if you are going through a divorce



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