When it comes to dividing up assets after a New York divorce, New York is an equitable distribution state. This means that, rather than dividing up a couple’s assets straight down the middle, if a court needs to resolve the issue, a court will consider a number of factors to ensure that the marital assets are divided fairly. However, only marital assets are subject t0 an equitable distribution analysis.money

A spouse’s separate property — such as that which was owned prior to the marriage — will not generally be considered marital property. However, property acquired throughout the marriage, including a businesses started during the marriage, is usually considered to be a marital asset that will be subject to equitable distribution.

In addition to the distribution of marital assets, a court may also order that one spouse pay post-divorce maintenance to the other spouse. The determination of how much spousal maintenance is appropriate is governed to some extent by formula, but it is left largely up to the discretion of the judge overseeing the divorce.

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billsAs we have discussed in previous posts, when a New York court is tasked with determining the amount and duration of spousal maintenance payments following a New York divorce, the court will start with the formula contained in Domestic Relations Law section 236(b). For determining the duration of spousal maintenance payments, the statute breaks marriages down into three categories and assigns each a percentage range:

  • Marriages less than 15 years in length: 15-30% of the length of the marriage
  • Marriages between 15 and 20 years in length: 30-40% of the length of the marriage
  • Marriages over 20 years in length: 35-50% of the length of the marriage

Domestic Relations Law Section 236(b) makes room, however, for the situation where the presiding judge believes that the guidelines do not adequately account for the party’s situation. In this case, the judge can order post-divorce maintenance for a duration that is shorter (or longer) than recommended by the formula. However, if a judge decides to depart from the guidelines, she must detail her reasoning in writing.

The spousal maintenance duration formula was made law back in 2015, and there have been relatively few cases testing a judge’s limits to depart significantly above the guidelines. However, the cases that have been issued are instructive. For example, a late-2016 case presented a situation where the party seeking maintenance payments was able to obtain them for the upper range of the guidelines.

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When a judge presides over a New York divorce, one of the parties will often request to receive post-divorce maintenance payments, formerly called alimony, from the other party. Up until 2015, the determination of the amount and duration of post-divorce maintenance was largely left up to the discretion of the judge overseeing the case. However, in 2015, the New York Legislature enacted sweeping reforms of the New York Domestic Relations Act, particularly in regard to how post-divorce maintenance is awarded.

spousal supportHoping to standardize the manner in which judges were calculating and awarding post-divorce maintenance, the legislature stepped away from a standard that was almost completely relied on judicial discretion, and implemented a more formula-based system. Previous posts have discussed how judges arrive at the amount of spousal maintenance, but we have not recently looked at the durational aspect of post-divorce maintenance.

Under Domestic Relations Law section 236(b), the court still retains some discretion in determining how long a party is entitled to post-divorce maintenance payments. However, the formula for calculating the timeline provides a range of time, as a percentage, based on the length of the marriage as the presumptive time period for maintenance to last. For example, post-divorce maintenance payments in marriages lasting less than 15 years should last between 15% to 30% of the marriage’s length. For marriages lasting between 15 and 20 years, the post-divorce maintenance payments should last between 30% to 40% of the overall length of the marriage. Finally, for marriages that were over 20 years in length, the post-divorce maintenance payments should last for 35% to 50% of the length of the marriage.

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As discussed in previous posts, the judge presiding over a New York divorce has the ability to order one party to pay the other spousal maintenance. There are two types of spousal maintenance.

CalculatorThe first is called pendente lite. Pendente Lite is a Latin term meaning “during litigation.” This is a temporary maintenance award that is designed to last only through the divorce proceeding. The justification for this order of support is that the spouse who controls the finances could otherwise cut off the other spouse’s access to money during the divorce proceeding before any judicial finding has been made. The second type of spousal maintenance is post-divorce maintenance, which continues for either a set term of years or, in rate circumstances, until death.

Both types of spousal maintenance are calculated by the formula contained in DRL section 236 and take into account similar factors. However, under certain circumstances, a judge can deviate from the maintenance amount provided by the formula by awarding more or less support, depending on the circumstances.

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Following a New York divorce, the judge presiding over the case may require one of the parties to provide regular spousal maintenance payments to the other party. These payments – known as maintenance in New York but commonly called alimony – are calculated according to a specific formula laid out in New York Domestic Relations Law section 236(B)(6). Spousal maintenance may be ordered for a specific period of time, or, in rare circumstances, it may be ordered for the lifetime of the receiving spouse.  There are presumptive guidelines for the amount and duration of maintenance based on incomes and length of the marriage.

YachtWhile spousal maintenance payments are primarily determined by the formula contained in section 236(B), there is a fair amount of judicial discretion in divorces with high-income earning spouses. As a general matter, New York law imposes an income cap when determining the appropriate amount of spousal maintenance. Back when the New York Domestic Relations Law was rewritten, the income cap was set at $175,000. However, the income cap increases incrementally year-over-year according to the consumer price index. The current New York spousal maintenance income cap is $184,000.

If a party to a New York divorce earns above the current income cap, the judge will apply the formula in section 236(B)(6) to determine the amount of spousal maintenance up to the income cap. However, a judge may exercise her discretion in ordering additional spousal maintenance by taking into account the party’s income in excess of the cap.

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Many New York family law cases involve a child custody dispute. Most often, these disputes arise when the parents of a child or children go through a divorce and argue over who has primary custody of the children. However, in some cases, grandparents seek visitation or custody of a child. This may be after a divorce or even while the child’s parents are still together.

CounselorIn previous posts, we have discussed under which situations a court may award visitation or custody to grandparents. As previously noted, grandparents do not have a “right” to the custody of their grandchildren. Thus, custody will only be awarded to a grandparent if certain factors are present. Among others, a court must determine that awarding custody to a grandparent or grandparents is in the best interests of the child.

How Do Courts Determine What Is in the Best Interests of a Child?

Judges know the law. However, very few judges are trained in psychology, and fewer still are able to glean sufficient knowledge of a family’s dynamics through the evidence presented to the court. For example, much of the evidence presented in a New York custody case may be limited to text on a page, which may not provide a judge with much knowledge of the relationships between the parents, children, and grandparents. Additionally, any live-witness testimony has the potential to be biased or fabricated.

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In a previous post, we considered a situation in which the grandparents of a child or children sought visitation when the custodial parent was opposed to such visitation. This week, we consider a related, although slightly different situation in which the children themselves have expressed a desire for the court not to order grandparent visitation.

Walk with GrandpaAs was the case in the previous post, section 72 of the New York Domestic Relations Law and Section 651 of the Family Court Act govern court-ordered grandparent visitation. Under section 72, grandparents who can establish that “circumstances show that conditions exist which equity would see fit to intervene” may obtain visitation rights.

While the issue of grandparent visitation can be a complex one, it is governed by a simple principle; as is the case in most New York child custody and visitation matters, courts will do what is in the best interest of the children. Of course, the expressed desires of a child may come into play when determining what is in a child’s best interests, although that will not always be the case.

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Most New York child visitation cases involve courts establishing the rights and obligations of the parents as they relate to each other. However, New York family law does contemplate a situation in which a court can order visitation for a child’s grandparents under certain situations. This may even be the case when the custodial parents are against the establishment of such visitation rights.

GrandparentsNew York Domestic Relations Law Section 72

As a general matter, section 72 of the New York Domestic Relations Law provides that visitation or custody rights may be appropriate for the grandparents of certain minor children. Subsection 1 deals with visitation rights. This subsection begins by discussing the procedure in a situation in which one or both of the child’s parents have died.

However, this subsection also allows for courts to award visitation to the grandparents even in situations in which one or both of the parents are alive, if the court determines that “equity would see fit to intervene.” This second scenario presents a more interesting situation in which the parents of a child are still alive, and at least one parent is against the issuance of visitation rights to the grandparents. Of course, as is often the case in New York family law matters, the court must also determine that grandparent visitation would be in the best interest of the child.

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In a recent post, we looked at the court’s power – and, in some cases, obligation – to order a DNA test in New York paternity proceedings. New York lawmakers have passed a similar, albeit slightly different, statute establishing when a court must order a DNA test in a New York child support case.

DNA TestGenetic testing can be a crucial part of a child support proceeding when one party disputes paternity. While the over-the-counter DNA testing that has recently become popular to determine an individual’s ethnic heritage has come under fire for its less-than-perfect accuracy, official DNA tests can often determine results with near certainty. That isn’t to say that state-administered tests always return an answer to a paternity question; however, when an answer is returned, the methodologies are such that courts are confident basing important legal decisions on the results.

Under Article 2 section 418 of the New York Consolidated Statutes, “[t]he court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to” DNA testing. When the language in the statute is broken down, the following is clear:

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Ever since the time that DNA testing has been recognized as a reliable method of determining paternity, family courts across the country have relied upon the testing to resolve disputes over paternity. Indeed, the New York Family Court Act discusses the availability of DNA testing for the purposes of establishing paternity in section 532.

DNAIn fact, section 532 requires family law judges or magistrates to advise all parties of their right to request DNA testing in paternity cases, instructing that the court “shall” order testing when any party requests it. That being said, the statute also prohibits DNA testing when the judge determines that testing is not in the best interest of the child based on certain enumerated reasons.

As noted above, parties have a right to a paternity test, and a test will be ordered if any party makes such a request. Additionally, the court can, on its own motion, order paternity testing even if neither party has requested it.

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