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New York Divorce Frequently Asked Questions

This list of frequently asked questions and answers on issues of separation and divorce has been developed by Divorce Headquarters in conjunction with our professional members in response to the numerous requests for information we have received from our site visitors.

The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice.


Alimony / Spousal Support

The authors and creators and any and all persons or entities involved in any way in preparation of the website known as Divorce Headquarters and/or divorcehq.com disclaim all responsibility for the legal effects or consequences of the interpretation of the information provided. Individuals intending to use divorcehq.com as an information resource should seek advice from family law professionals and experts familiar with the laws of their state. This website is not intended to provide legal advice and should not be relied on for that purpose.


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Do not take any actions based upon the information contained within this web site without first consulting an attorney or an appropriate professional depending upon the content of the information.



Return What is a separation agreement?
A separation agreement is a comprehensive contract where the parties agree to live separate and apart for the rest of their lives. The agreement must set forth rights and duties with respect to important issues such as custody, visitation, child support, distribution of property and all other matters that arise at the end of a marital relationship. Each of the parties should consult their own attorney to draft and prepare the agreement so that these complex issues can be analyzed and resolved appropriately. The final agreement is then filed with the clerk of the county where either spouse resides. At the end of one year from the date of the agreement, either spouse may initiate a suit for a "no-fault" divorce.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is a Separation Agreement? Is That Better for Me Than Divorcing?
Sometimes people want a Separation Agreement rather than a Legal Divorce. A Separation Agreement starts with our Mediators mediating all the issues to negotiate, same as in Divorce. Then, the Separation Agreement, a contract between the Spouses containing all the mediated issues, is drawn up. The Separation Agreement, similar to the Stipulation of Settlement, is then filed with the county clerk in NY.

Why do couples select a Separation, rather than a Divorce? Some are hoping to reconcile. Some want to stay on the other Spouse's Health Insurance. Since in a Separation, the couple is still married, most insurance plans allow the non-insured Spouse to stay on the plan, even though separated.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return When does a court grant a judgment of separation?
A Court grants a judgment of separation when either of the parties brings an action for separation in the Supreme Court. A Court may grant separation based upon the following grounds, which are similar to the grounds for seeking a divorce:
  • Cruel and inhuman treatment
  • Imprisonment for more than three years
  • Adultery
  • Abandonment for less than one year
  • Non-support
If the Court grants a judgment of separation based upon any of these grounds, either party may sue for a "no-fault" divorce one year after the filing of the judgment and living separate and apart. A divorce will not occur automatically.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the grounds for seeking a divorce in New York State?
There are several grounds under which a person may seek a divorce from his or her spouse. The following grounds are based upon the "fault" of one of the parties:
  • Cruel and inhuman treatment
  • Abandonment for one or more years
  • Imprisonment for three or more years
  • Adultery
The "no-fault" grounds are as follows:
  • Irretrievable breakdown of the relationship
  • One year of living apart under a separation agreement;
  • One year of living apart under a judgment of separation

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return How Are Financial Assets and Debts Divided Up in Divorce Mediation on Long Island?
In Mediation, the Mediator gathers all financial information from the Couple. Then the Mediator guides the Spouses through division of all assets and liabilities. In New York, all property acquired after the marriage is divided through equitable distribution. Most often the Couple decides on a 50/50 split, but that can be varied in individual cases.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return How Is My Pension Divided in Divorce Mediation?
In most circumstances, any part of a pension, IRA or 401k, earned during the marriage is distributable between the Spouses. Often that results in a 50/50 split. This can be varied during divorce mediation.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return In a Divorce, Who Gets the House?
In New York State, neither Spouse automatically gets the House. Whether the House is to be sold or not depends on the overall picture of the finances of the Couple. It also depends on who is the owner. Some Houses are bought before the marriage and that Spouse then retains ownership after divorce.

This is a complex issue that needs to be resolved before the mediation sessions are completed.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return What is the difference between marital and separate property?
Marital property is all property acquired during the marriage - regardless of how title is actually held. Separate property includes all property acquired before the marriage and also includes inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return Are You Entitled to Spousal Support?
The New York State Courts have developed a complex formula for determining Spousal Support. They include the salaries of each Spouse, length of marriage and other factors. A rule of thumb - if the Spousal incomes are close to equal when child support is added in, usually there is no Spousal Support. Please call us for details. 631-757-1553

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return Basic Child Support Obligation -- What is this?
The "basic child support obligation" is defined in Domestic Relations Law Section 240 (1-b)(b)(1) to mean "the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except an increased pursuant to subparagraphs 4, 5, 6 and 7 of such paragraph."

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return Can a Court, in the exercise of its discretion, attribute or impute income to either parent from any resources as may be available to the parent?
Yes, a Court can attribute or impute income to either parent from any resources as may be available to the parent. These may include but not be limited to:
  • non-income producing assets;
  • meals, lodging, memberships, cars or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use or which expenditures directly or indirectly confer personal economic benefits;
  • fringe benefits as part of compensation for employment;
  • money, goods or services provided by relatives and friends.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return May a Court attribute or impute income to a parent from non-income producing assets?
Yes, and this is wide ranging and could include anything from a license to practice medicine, a piece of artwork, or a coin collection (passive appreciation).

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return May the child support percentages be applied to the combined parental income in excess of $80,000.00?
Yes. See Court of Appeals case where, "The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the Court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage." The Court determined that as there was "no extraordinary circumstances present, application of the statutory percentage to the income above the $80,000 was justified and not an abuse of discretion."

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the basic child support obligation "add-ons"?
  • Mandatory award of child care expenses;
  • Discretionary award of child care expenses;
  • Mandatory award of health care expenses;
  • Discretionary award of child educational expenses--private school and college expenses (Historical Perspective).

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the child support percentages?
Once arriving at the combined parental income, the sum calculated is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:
  • 17% of the combined parental income for one child;
  • 25% of the combined parental income for two children;
  • 29% of the combined parental income for three children;
  • 31% of the combined parental income for four children;
  • no more than 35% of the combined parental income for five or more children.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the Guidelines for Child Support In NY?
Child support amounts have been mandated by the Courts in New York State. They are: The residential Spouse gets 17% of the non-residential Spouse's gross yearly income minus social security for one child. For two children, the number is 25%. For three children, 29%. For four or more children, the amount is 35%.

In Divorce Mediation, Spouses can modify the amounts mandated by the Courts according to circumstances.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return What are the penalties for non-payment?
Family Court Act Section 454 "Powers of the Court on violation of a support order" provides that upon a finding that a respondent has failed to comply with any lawful order of support, the Court may:
  • Enter a money judgment;
  • Make an income deduction order for support enforcement;
  • Require the respondent to post an undertaking;
  • Make an order of sequestration;
  • Suspend the respondent's driving privileges;
  • Suspend the respondent's state professional business license;
  • Suspend the recreational license(s) of the respondent; or
  • Require the respondent, if the persons for whom respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the Social Services Law.
There are additional remedies concerning attorney's fees or jail time. Also, under Family Court Act Section 458-a, if support arrears are equivalent to or greater than the amount of current support due for a period of four months, the Court may order the Department of Motor Vehicles to suspend the respondent's driving privileges. It is unknown as to whether or not there is a current procedure for this in effect. Similarly, Family Court Act Section 458-b provides for suspension of a respondent's business or professional license under similar circumstances.

In Supreme Court, similar provisions apply to suspension of a driver's license under Domestic Relations Law Section 244-b and to suspension of a business or professional license under DRL Section 244-c.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What income can a Court consider if a parent quits a job -- or can a Court impute a dollar amount income based upon a parent's former resources?
Yes, the Court can impute a dollar amount income based upon the parent's former resources. In other words, the Court can compute income as if the parent was working at the same job.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is gross income for purposes of calculating child support?
Gross income means all income from whatever source derived, including but not limited to:
  • Compensation for services, including fees, commissions, fringe benefits and similar items;
  • Gross income derived from business;
  • Gains derived from dealings in property;
  • Interest;
  • Rents;
  • Royalties;
  • Dividends;
  • Alimony and separate maintenance payments;
  • Annuities;
  • Income from life insurance and endowment contracts;
  • Pensions;
  • Income from discharge of indebtedness;
  • Distributive share of partnership gross income;
  • Income in respect of a decedent; and
  • Income from an interest in an estate of trust.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is the age at which child support ceases?
The age at which child support ceases is 21, although this differs in custody and visitation issues where the age of majority is 18. But, for purposes of the parental support duty, the age of majority remains at 21. A Court may in its discretion deviate from the basic child support obligation if the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate. Factors a Court may consider in deviating from the basic child support obligation are:
  • The financial resources of the custodial and non-custodial parent and those of the child;
  • The physical and emotional health of the child and his/her special needs an aptitudes;
  • The standard of living the child would have enjoyed had the marriage of household not been dissolved;
  • The tax consequences of the parties; the non-monetary contributions made by the parents toward the care and well-being of the child;
  • The educational needs of either parent;
  • A determination that there exists comparative financial circumstances between the parents which reflects a wide disparity in gross income between the spouses;
  • The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support other than the child of the instant action and whose support has not been deducted from income and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support the children are less than the resources available to support the children not subject to the instant action;
  • Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof;
  • And any other factors the court determines relevant in each case.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What Are the Guidelines for Child Custody in NY?
Couples can choose either sole legal custody or joint legal custody. In joint legal custody, parents share responsibility for important decisions about their children, including health and school.

In sole legal custody, one parent is responsible for decisions re the children.

In New York, most couples these days are choosing joint legal custody.

Then there is residential custody. Residential custody refers to where the children primarily reside. The parent who has residential custody receives child support from the non-residential parent.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return Are there situations when divorce mediation is not recommended?
Yes. Divorce mediation is not appropriate for all couples. For example, divorce mediation is not recommended in situations involving domestic violence. It is also not appropriate when one spouse overpowers the other or refuses to participate honestly. In addition, if one spouse refuses to divulge all financial information or fails to cooperate with the mediator's guidelines, mediation is not appropriate.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return By choosing mediation, do I give up any rights that I or my children may be entitled to?
Divorce mediation is an alternative to adversarial proceedings or negotiations. All issues that would normally be addressed in adversarial proceedings or negotiations(child and spousal support, parenting arrangements, division of marital assets, tax implications) are discussed by the parties. Neither party should need to relinquish any of his or her entitlements, but instead of litigating issues, you and your spouse privately work through your differences with the goal of reaching an agreement that will best serve your present and future needs.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return Can I withdraw from mediation if I am unhappy with the results?
Yes. Divorce mediation is a voluntary process. This means that both you and your spouse must be willing participants. If you or your spouse are not happy with the progress of the mediation, either one of you can withdraw at any time.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return How does mediation address power imbalances between spouses?
Not all couples are suited for divorce mediation. For a mediation to be successful, both parties must make their voices heard. In situations where there are serious power imbalances between spouses, divorce mediation may not be appropriate. At the initial session as well as during the course of the mediation, the trained mediator together with the parties will assess the suitability of the couple for mediation. Also true is that the process itself can be an empowering one and that a spouse who at first may perceive himself or herself at a disadvantage actually develops or discovers strong bargaining skills.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return How long does divorce mediation take?
Sessions usually last one to two hours. The number of sessions varies depending on the complexity of the issues and the needs of the parties. Successful mediations usually take from three to 10 sessions.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return If we cannot communicate with each other, how will we be able to communicate through the divorce mediation process?
The divorce mediator is specifically trained to help couples with communication problems.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return Is a separate attorney for each party necessary?
Yes. At the beginning of the mediation process, each party is advised to hire independent counsel to advise and consult with throughout the mediation process. The number of hours each party's attorney spends as a consultant is usually significantly less than would have been spent during adversarial negotiations or court proceedings. At the end of the mediation, if the parties have settled on the terms for a separation agreement, the attorney mediator drafts the agreement. Each party then has his or her attorney review the agreement.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return What are the benefits of divorce mediation?
Through divorce mediation, you and your spouse privately work through your differences and make decisions about your present and future needs. Generally, this process facilitates communication, promotes cooperation, reduces tension, and makes the inevitable separation easier. Divorce mediation is also a cost-effective alternative to traditional divorce litigation.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123  



Return What if I Can't Get My Spouse to Come to Divorce Mediation?
In New York, we have no-fault divorce. That means that you no longer need to prove grounds in order to get a divorce. Either Spouse can get a divorce if they wish.

Therefore, the Spouse who wants a divorce can say to the other: "I am getting a divorce. You can come to Divorce Mediation sessions and divorce that way. (This is an uncontested divorce.) Or we can go to separate lawyers and pay a large retainer each with more expense to come." Then the lawyers and the Judge will be in charge of our divorce. (This is a contested divorce.)

Most Spouses then agree to come to Mediation which costs under $5000 total as compared to going to separate lawyers. In Suffolk County, NY each side must come up with an average of $7500 as a starter retainer when going to separate lawyers.

This answer supplied by: Long Island Center for Divorce Mediation     (631)757-1554  



Return What is the role of a trained mediator?
Throughout the mediation process, the mediator remains a neutral party. This means that the mediator is not acting as advocate, judge, or jury. Rather, the mediator's purpose is to assist the parties in identifying and clarifying the issues that must be resolved. He or she will help to develop a constructive dialogue that examines each issue with a focus on the parties' needs, interests, and priorities.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Schein, LLP     (212)867-9123