What Are My Rights During a Divorce?

Hi, I’m Kevin Colwell of Colwell, Colwell, and Petriccione. Today I wanted to talk to you about a question that I get very often in my practice and its “if I’ve decided to get divorced, then what are my rights?” Usually what somebody means by that is, how much will I have to pay my spouse or what will I receive? Really the best way to break it down is to look at the individual issues that the court is going to have to decide when contemplating a divorce action. The first issue the court is going to have to resolve is whether or not it has jurisdiction to dissolve the marriage. In New York state that really is no longer an issue, in 2010 the legislature passed a no-fault divorce statute. So now in order to dissolve the marriage, all the Court has to see is an affidavit from one party saying that there’s been an irretrievable breakdown in the marital relationship for the last six months, and that will give the court the jurisdiction it needs to dissolve the marriage. The next thing that the court will typically look at is if there are minor children of the marriage, the court is going to need to look to determine what an appropriate custody order is. Usually, if there are no fitness issues for either party the court is going to look to joint legal and shared residential arrangement between the parties and of course that’s going to the parties’ individual situations and living circumstances. From there, the court is going to look what an appropriate child support is and child support orders are made pursuant to the Child Court Standards Act and it’s just a straight calculation. Seventeen percent of the combined parental income goes to one child twenty-five to two and it goes up depending on the number of children. Also, the next thing the court will have to consider is spousal maintenance. There’s no set formula like child support, the court has to weigh twenty different factors that are set forth in the domestics relations law, and the factors are varied, but to give you an idea its the length of the marriage, the health of the parties, whether or not there are children living with the party, and that kind of thing. From there, the next large issue will be the equitable distribution of the marital estate. Equitable distribution doesn’t necessarily mean equal distribution, although that’s what it does mean in practice. What the marital estate really is defined as being is any asset or liability that is either incurred or earned during the marriage. That includes things like your pensions and real property, regardless of how that property is titled. So that’s kind of an overview as to the main issues and generally speaking how your New York divorce court will address them in your divorce action. In coming talks, I’ll try to address some of these topic areas more in-depth. Thanks and I look forward to speaking with you again.