Thinking About Getting Divorced in New York?
Local Divorce Lawyers Discuss Child Custody and Property Division
The decision to get divorced is really about making a choice about what is best for your family. In some cases, the best way forward for you, your spouse and any children you have may be to separate. However, even if divorce will help you in the future, it is always challenging process, especially if you have been married for some time. The stress and emotional turmoil can make it even more difficult to answer the complicated legal questions that you will encounter. Questions about asset division, child custody and support, and/or alimony can be tough to settle, even if you are on amicable terms with your spouse. Therefore, while you do not necessarily need an attorney to dissolve your marriage, consulting a New York divorce lawyer can help you navigate the divorce process more quickly and smoothly.
If you are considering divorce or were served with a petition by your spouse, then an attorney can help you understand your rights and options. Below, our local New York family law attorneys explain the general steps of the divorce process and discuss common issues you may encounter. However, every situation is different; a lawyer can examine your situation and explain how New York divorce laws apply to your unique circumstances.
What Is the Divorce Process?
Every divorce is different, so your experience may vary widely from that of another person. However, the basic stages of the divorce process are, by and large, the same. These are:
- Filing or Receiving a Petition for Divorce. If you and your spouse mutually agree that divorce is the best option for your family, then it may matter very little which of you files the legal petition. However, in more contentious circumstances, you may file or receive a petition with little advance warning. If you are served with a petition for divorce, then you must answer in a timely manner. Still, you should consult a divorce attorney before doing so.
- Temporary orders. When you file your petition, the court may issue temporary orders pertaining to child custody and child and/or spousal support. Usually, these orders will stay in effect until the finalization of your divorce. If you receive a petition from your spouse, then the paperwork will contain details of any temporary orders.
- Discovery. Both parties and their divorce lawyers will have a period of time in which to gather facts about the marriage. This includes an accounting of all assets and debts, plus any other relevant information.
- Negotiation and/or mediation. You and your spouse must agree on a system for child custody and/or support as well as asset division and other issues. If you cannot reach an agreement, then family law mediation may be a workable solution.
- Trial. The court will hear both sides and then issue a decision on any terms that were not previously settled.
- Order of dissolution. At the conclusion of the trial or hearing, the court will officially order the end of the marriage. This puts the terms of your divorce agreement into effect.
How Is Child Custody Determined?
If your divorce involves minor and/or dependent children, then one of the most important things to consider is child custody. In legal terms, there are two different types of “custody” which will apply; these are:
- Legal custody. Having legal custody of your child means that you have the right to make decisions about your child’s life. These may include choosing a school, religion, medical needs and travel arrangements.
- Physical custody. This refers to your right to have your child physically live with you. In the vast majority of cases, regardless of legal custody decisions, the court will award physical custody to just one parent, the “custodial parent,” who will provide the child’s permanent residence.
You and your spouse can tailor your child custody agreement to your individual circumstances. However, there are two general types of child custody arrangements, which are:
- Joint custody. In a joint custody arrangement, both parents will share legal custody of the child or children. This means that both parents will have input on important decisions relating to the child’s upbringing, such as education and medical care. However, usually, the child or children will stay with the custodial parent, while the other parent will have visitation rights.
- Sole custody. In some circumstances, one parent will receive sole physical and legal custody. This is common in situations involving domestic violence, child abuse, drug or alcohol problems or other conditions that may harm the child. Sometimes, the other parent will still retain some visitation rights and may still pay child support.
Who Will Pay Child Support After a Divorce?
Regardless of the child custody arrangements, the child or children will almost always spend more time with one parent. Therefore, the custodial parent will likely spend more money on the child’s living expenses, like food and clothing. To make up for these expenses, the court may order the non-custodial parent to pay child support. (It is also possible for both parents to pay child support to a third party, if a third party is awarded legal and physical custody).
The amount that you will pay or receive in child support depends on multiple factors as well as state laws; for instance, New York has a much higher cost of living than many other states, and support payments are generally higher in order to reflect this. In New York, the factors that may contribute to your child support payments include:
- The child’s needs. Both parents are responsible for providing for their child’s needs; therefore, the court will consider all costs associated with raising your child in determining child support. For example, if your child has a medical condition, then your child support payments will likely be higher to account for necessary care.
- Childcare expenses. If the custodial parent requires childcare assistance, such as a daycare, to allow him or her to work, then the non-custodial parent may have to pay a portion of these expenses.
- Both parents’ incomes. Usually, the court considers the income levels of both parents and assigns a percentage of the combined income to each. This calculation is important for establishing child support payments. However, as the non-custodial parent, you will likely still have a child support obligation even if your spouse makes more than you.
- Visitation arrangements. The court will consider the percentage of time that the child spends with each parent. The more equal the time spent with each, the lower the child support payments, as a general rule.
Need a Divorce Lawyer in New York? Check Our Local Listings
If you are considering divorce or received a divorce petition, then you should contact a family law attorney as soon as possible. To find a divorce lawyer near you, consult our local listings. Alternatively, if you have a question about family law, divorce or child custody/support in New York, then do not hesitate to ask the lawyers.