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CONTESTED DIVORCE

REPRESENTATION 

Divorce can be an emotionally exhausting and difficult time for you and your family. It can, however, provide those in need of a divorce closure and allow individuals to begin a new chapter in their lives.

 

Along with a dissolution of marriage, other issues require resolution—issues pertaining to asset division, child and spousal support, custody and others which tend to have a substantial effect on your life. When disagreements between you and your spouse over such issues occur, you have what is generally considered to be a “contested divorce.” A contested divorce is dealt with like most litigation. As such, it is important to have the best legal representation to fight for you and your rights.

Some of the most hotly contested issues pertain to child support, custody/visitation, maintenance and asset division. 

 

Child Custody:

 

Custody can be separated into two parts: 

 

Legal custody, or decision-making, typically considers the more important and substantial decisions that you as parents will have to contemplate for your child[ren]—decisions pertaining to education, religious upbringing, medical care, etc. There are a few standards that courts deem acceptable.

 

  • Joint—both parents will have equal say as to what your child does.

  • Decision by one parent after consultation—parents must confer and try to reach a consensus, but if none is reached, one has the ultimate authority to decide.

  • Sole Decision by Either Parent—One parent will retain the authority to decide a particular issue and will inform the other of the decision.

Decisions do not have to be dealt with solely by one standard; different standards may apply to different issues—it all depends on the particulars of your situation. 

 

The other aspect of child custody refers to what most people tend to think of when they think “custody”—physical custody: with which parent and for what duration will the child[ren] stay. Typically, work and other practical considerations affect who retains physical custody of the child[ren], but we, at the Law Offices of David Fried, know how to argue for your rights as a parent of your child[ren]. 

 

  • Sole Custody—one parent will retain sole physical custody of the child[ren] while the other has rights to visit same.

  • Joint Custody—both parents will split their time with the child[ren] equally. 

  • Primary Custody—one parent will have the kids more than 50%.

  • Secondary Custody—one parent will have the kids less than 50%.

 

Retaining custody over your children is likely one of most sensitive points of contention during a divorce proceeding. We understand the difficulties and strains this places on you and your family, so we try our best to make this process as seamless as possible. 

 

Child Support:

 

Child support is broken down into two separate categories: Basic Child Support & Mandatory Add-Ons. 

 

Basic child support pertains to the monthly payments the non-custodial parent makes to the primary custodial parent. The courts in New York have created guidelines which detail how much the non-custodial parent would pay. They are as such:

 

  • 1. The court determines the income of each parent and then adds both together. 

 

  • 2. The court multiplies the combined income by a percentage:

    • 17% for one child

    • 25% for two children

    • 29% for three children

    • 31% for four children

    • 35% for five or more children

 

  • 3. The court divides that amount based on the ratio of each parent’s income.

 

  • Important to note, these are merely guidelines for the courts and as such, the figures are not a definitive representation of what the non-custodial parent will pay the other.

The court’s rationale for such guidelines is that it is presumed that the parent with primary custody spends more money on clothing, housing, food, entertainment, etc., than the non-custodial parent since the child[ren] spend most of their time with that parent. 

 

Mandatory add-ons consider expenses related to education, work-related child care, unreimbursed medical bills, among other “big-ticket items”. These mandatory add-ons are typically shared between the spouses in a ratio commensurate to both individual salaries.

 

Visitation:

 

When it comes to children, the courts rely on the best interests of the child standard. To provide children with a sound family experience, it’s usually important for the child[ren] to spend time with both parents. These are certainly exceptions to this general rule. 

 

Depending on the situation, courts decide on a visitation schedule for the non-custodial parent. Usually, these schedules are strictly adhered to and deviation from them can come with serious consequences. 

 

How much time the non-custodial parent has with his or her kids is something that we know how to advocate. We have dealt with these proceedings time and time again and know how to navigate these murky waters.

 

Maintenance:

 

Maintenance (or spousal support) is essentially a temporary, transitional support payment plan that the lower income spouse receives from the higher wage earner. The purpose of spousal support is to foster economic independence over a limited duration. Questions almost inevitably arise as to how much one spouse is due. As such, differing opinions often bring spouses to court to argue how much the other is entitled to receive. Like most things divorce-related in New York, it is subject to a judge’s deference. However, the courts have created guidelines pertaining to maintenance as well: 

 

  • If Child Support is being paid by the higher earner, then the lower figure of either

  • 20% of the higher earner’s income minus 25% of the lower-earner's or

  • 40% of the combined income of the spouses minus 100% of the lower earner’s income

 

  • If Child Support is not being paid by the higher earner, then the lower figure of either

  • 30% of the higher earner's income minus 20% of the lower earner’s or

  • 40% of the combined income of both spouses minus 100% of the lower’s 

 

  • The duration of payments to be made depends on the length of the marriage

  • 0-15 years of support = 15-30% of the length of the marriage

  • 15-20 years of support = 30-40% of the length of the marriage

  • 20 or more years = 35-50% of the marriage

The Process:

 

Depending on the complexity of the divorce, such proceedings can span from a few months to well over a year. During this time, divorce papers are filed and served, appearances in court are made, temporary orders regarding support, custody, access, etc., can be issued, documents are exchanged between both parties, conferences are scheduled, and finally, a trial may occur—though, very often, litigation tends to settle before trial. The process is long and filled with legal nuances which is why it is important to have lawyers with great experience deal with such matters on your behalf. 

 

Fault Grounds:

 

New York is a “no-fault” divorce state. This essentially means that in order to get divorced, you need only allege that there has been an irretrievable breakdown in the marriage for over six months. If one spouse does not wish to get divorced, that will have minimal bearing on whether you can file for one. The court does not generally inquire more into why you are choosing to get divorced, and as such, you need not allege a fault, like adultery or abandonment, for instance. It is important to note, alleging a “fault” can exacerbate the litigation. 

 

If certain changes arise, it may be possible to modify custody, support, and visitation orders. During your consultation with our office, we will be able to give you an overview into the options that may be available depending on the facts of your case. Consultations are always FREE and there is no obligation. We offer flexible payment options and look forward to helping you!

"Mr. Fried and his staff were impeccably professional and knowledgeable. They were patient and answered all of my questions, and I received prompt responses to all calls and emails. I also appreciate how well they explained the legal proceedings of my case to me. Thanks to their efforts, my case was resolved with a favorable outcome. Overall, I am very pleased with the quality of service I've received and would absolutely recommend this firm."

—  Y. Chun

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