Buffalo Matrimonial & Family Law Attorney
Endings are rarely easy. At SIEGEL GULLO, Attorneys, we understand that getting divorced or separated is difficult, even in the best of circumstances. We know that, even if you were not married, but you had children together—the breakup can be just as tough. Our attorneys appreciate the complexity of separations and we know the toll it takes-- emotionally, financially and physically, on the spouses, parents and kids involved. That is why we attempt to make you as comfortable as possible—explaining the process and working hard to ensure that you understand all of your options and we will assist you in making the right decisions for you and your family while keeping you, not judges or lawyers, in control.
Our attorneys have had great success with assisting clients to resolve their matters by settlement; thereby providing them with much greater control over the outcomes. At SIEGEL GULLO, Attorneys, we believe that the best way to settle a case is to employ diplomatic negotiations with tenacity and preparedness. Our adversaries know that we will take cases to trial if an acceptable resolution cannot be reached in negotiations.
If your case is already resolved, but the corresponding Orders are being ignored by your former spouse, we are here to help. If you are having difficulty complying with a custody, child support or spousal maintenance order because of a change in your life, we are here to help. We understand that life is not static—it changes and so do your needs and abilities. When the custody, child support or spousal maintenance arrangements you made in the past must be enforced or modified to more accurately reflect your present circumstances, SIEGEL GULLO, Attorneys will skillfully assist you in making things right.
ELEMENTS OF A MATRIMONIAL CASE
- Divorce & Separation
- Grounds for Divorce
- Equitable Distribution
- Spousal Maintenance
- Child Custody
- Child Support
DIVORCE & SEPARATION IN NEW YORK
In New York, marriage relationships only can be altered or dissolved by the New York State Supreme Court. To accomplish this, a proceeding must be commenced in the Supreme Court in which the person seeking the divorce, separation decree or annulment must prove “grounds.”
Grounds for Divorce: Grounds are valid reasons, prescribed by law, which must exist and be proven to the court. The Supreme Court does not have the power to grant a divorce without proper grounds, even if both parties agree to it. There are five types of fault-based grounds and two types of “no-fault” grounds.
Fault Based Grounds: Grounds based on fault of one of the Parties
- Cruel and inhuman treatment of one party by the other,
- Abandonment for one or more years,
- Imprisonment for three or more years, and
- Judgment of Separation: Living apart pursuant to a decree or judgment of separation (given by the Court) for a period of one year or more (proof of substantial compliance with decree/judgment required)
Other (“No-fault”) Grounds: Neither spouse is judged to be at fault. If certain criteria are met, they may be substituted, instead of fault-based grounds.
- Separation Agreement: AKA “Conversion” Divorce: Involves converting a written “Agreement of Separation” into a divorce. Criteria includes:
- 1. The parties have lived separate and apart, pursuant to a duly acknowledged separation agreement for a period or one year or more, and
- 2. The party seeking the divorce has substantially complied with the terms of the separation agreement .
- Irretrievable Breakdown (New York’s “No-Fault” Divorce): Enacted into law in October 2010, criteria includes:
- 1. The relationship between the Husband and Wife has broken down irretrievably;
- 2. For a period of at least 6 months;
- 3. Provided one party so states under oath; and,
- 4. All related issues have been resolved, including property division, spousal support, child support, counsel fees/expenses, and child custody visitation
Equitable Distribution: The method by which marital property is distributed in a New York divorce. New York’s Domestic Relations Law, Section 236B (link to law), often referred to as the “Equitable Distribution Law (EDL)”, is the governing law and starting place for understanding equitable distribution. DRL 236B includes provisions for:
- Determination of separate and marital property;
- Valuation of marital property;
- Factors to consider in “equitably” distributing assets and liabilities;
- Distributive awards;
- Distributions of assets and liabilities; and
- Support, including child support and spousal maintenance, and its effects on equitable distribution.
For more information about equitable distribution, or to discuss what to expect in your case, contact our office to speak with an experienced attorney.
Spousal Maintenance: Spousal Maintenance generally falls under two categories: temporary (“pendente lite”) and post divorce.
Temporary Maintenance: Also called “pendente lite,” this is maintenance that is to be paid while the action of divorce is pending. As of October 12, 2010, when awarding temporary maintenance, the court must follow a fixed formula contained in the Temporary Maintenance Guidelines; the formula will only result in a temporary maintenance award when there is an income gap between the two parties. Temporary maintenance terminates upon the issuance of a final award of maintenance.
“Final” or Post Divorce Spousal Maintenance: This is maintenance that is paid out after the divorce and may involve complicated and vital tax consequences to both parties which require expert advice. Post divorce spousal maintenance is based upon factors set forth in the EDL, may be for a limited or indefinite time period, and may be waived, by written agreement. Spousal maintenance factors include:
- The prior standard of living of the parties;
- The present and future earning capacity of the parties;
- The age and health of the parties;
- The length of the marriage;
- The presence of children of the marriage in the home;
- The need of one party to incur education or training expenses;
- The wasteful dissipation of marital property;
- A transfer or encumbrance made in contemplation of the divorce, without fair compensation;
- The existence and duration of a pre-marital joint household or a pre-divorce separate household;
- Acts against the other spouse that have inhibited his/her earning capacity or ability to obtain meaningful employment, including acts of domestic violence;
- The availability and cost of medical insurance;
- The care of children, step-children, disabled adult children, elderly parents or in-laws, that has inhibited earning capacity or ability to obtain meaningful employment;
- The inability of one party to obtain meaningful employment due to age or absence from the workforce;
- Exceptional additional expenses for the children, including daycare, education, and medical treatment;
- Tax consequences to each party (maintenance is taxable to the payee & deductible by the payor);
- Marital property subject to distribution;
- Reduced or lost earning capacity as a result of foregoing or delaying education training, employment, or career opportunities during the marriage;
- Contributions and services of the maintenance recipient as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- The ability of the party seeking spousal maintenance to become self-supporting; and
- Any other factor the court expressly finds to be just and proper.