Family Law

Question 1

Equitable Distribution

Answer 1

“FAIR” division of property rights and obligations between spouses during divorce.

It may be done by agreement, through a property settlement, or by judicial decree.

Question 2

Marital Property

Answer 2

Property acquired by either spouse from the day of the marriage up to the day the matrimonial action is commenced when process is filed with the clerk or when the spouses sign a separation agreement which marks the end of the economic partnership.

Question 3

Equitable distribution does not apply to:

Answer 3

1. Assets acquired Prior to the marriage
2. Compensation paid to a spouse during the marriage to compensate the spouse for Personal injuries
3. Property Inherited during the marriage
4. Gifts during the marriage from someone other than the spouse
5. Property purchased during the marriage but paid for with the Spouses separate property

Question 4

No Fault Divorce types:

Answer 4

1. When one spouse simply executes an AFFIDAVIT that the marriage has BROKEN DOWN IRRETRIEVABLY for at leastSIX MONTHS, but no divorce can be granted on this ground until ALL OTHER ISSUES HAVE BEEN RESOLVED (economic, child custody, and child visitation)
2. No fault conversion divorce which PERMITS EITHER spouse regardless of fault to OBTAIN A DIVORCE based on LIVING SEPARATE and a part for ONE YEAR or more pursuant to the terms of a NY or sister state separation agreement or separation judgment with which the plaintiff has “substantially complied”

Question 5

Child Custody

Answer 5

The standard used by the family court or the NY supreme court to determine which biological parent should have custody is BIC (Best Interest of the Child)

** Visitation by non custodial parent is a constitutional right

Question 6

Change in child custody:

Answer 6

FLIP DADS

Substantial change in circumstances, the court will consider:

1. Financial ability of each parent
2. Life style of each parent and any adverse affect on the child
3. How the Initial custody arrangement was made, that is, was it made on consent of the non custodial parent or was it made after a full trial on the BIC issue
4. Which parent served as the child’s Primary caretaker in the past
5. The Desires of the children
6. The parents Availability, and ability, to raise the child, here the court looks at the living arrangements available for child custody
7. Prior incidents of Domestic violence which must be established by a preponderance of the evidence
8. Siblings should not be separated

Question 7

Child Support

Answer 7

Both parents are responsible for child support until the child’s 21st birthday unless earlier the child is emancipated or a parent dies, emancipation is a complete severance of the parental relationship when a child voluntarily and without sufficient cause withdraws from parental control and guidance

**Court cannot for any reason retroactively cancel or reduce CHILD SUPPORT ARREARS that have not been paid “no excuses at all” are tolerated with respect to child support arrears

Question 8

Modification of child support:

Answer 8

1. Three years has passed since the order or judgment was entered or three years from when it was last modified
2. An increase or decrease of 15% or more of either parents gross income since the order or judgment was entered or last adjusted or
3. A substantial change in the financial needs of the child and not the parent