Frequently Asked Questions

The most common questions asked about divorce and family law cases in New York.

Child Custody FAQs

There are two broad types of child custody: physical and legal. Physical, or residential custody, refers to which parent the child lives with. Legal, or decision-making custody, refers to the parental authority to make decisions regarding the child, such as decisions involving the child’s health and education.

Within physical and legal custody, there are two types: sole or joint custody. If a parent has sole custody, the child will reside with him or her and they will have the primary ability to make decisions for the child. In a joint custody arrangement, the child will split their time between residing in each parent’s home. The parents would both have the authority to make major choices on behalf of their child, and can either have “equal decision-making” power or the primary custodial parent would get to make final decisions after consulting with the non-custodial parent. In New York, joint custody arrangements are often established through an agreement between the parents depending on their specific situation. Other types of custody include shared and split. Shared custody refers to when parents share their access to their child 50/50, and split custody refers to cases in which at least one child lives with one parent and at least one child lives with the other.

The term custodial parent refers to the parent who has primary physical custody of his or her child. The custodial parent resides with the child for the majority of the time and has the most responsibility for the child even if there is a joint custody arrangement and the other parent plays a very active role in the child’s life. The non-custodial parent is the parent who does not have physical custody of his or her child. It is possible, however, for a non-custodial parent to have legal custody, or the authority to make decisions about the child. They also may have visitation rights and be highly involved in their child’s life.

The court makes decisions regarding child custody based on what they deem is in the “best interests of the child.” In order to decide what is in the best interest of the child, the court examines factors including: who the primary caretaker of the child is, the child’s wishes, the physical and mental health of each parent and the child, the parenting abilities of each parent, each party’s work schedule and child care plan, the child’s relationship with each parent, any incidences of domestic violence or child abuse, where the child resides when the custody application is being reviewed, the parents’ willingness to communicate with each other, etc.

When one parent is granted sole custody of a child, the other parent is generally entitled to visitation rights, or the right to visit with their child. The terms and schedule of visitation can be decided by the parents, or if they can’t agree, then by the courts. Visitation is generally granted to non-custodial parents unless it is not in the child’s best interest, such as if the non-custodial parent is abusive, a drug addict, or alcoholic. In joint-custody arrangements, visitation is not an issue because the child lives with both parents.

If a custodial parent moving with their child would infringe upon the non-custodial parent’s visitation rights, the non-custodial parent can take legal action to prevent the custodial parent from relocating. This may include petitioning for custody or for a modification of a custody agreement to keep the other parent from moving. If this occurs, the custodial parent would have to prove to the court that relocating is necessary for economic or familial reasons and that it would not inhibit the other parent’s visitation rights.

A judge may prevent the custodial parent from relocating or order him or her to pay for the non-custodial parent’s travel expenses to visit with the child, for instance. Ultimately, the court determines whether or not a custodial parent can relocate with their child based on whether moving is in the child’s best interest, whether access to the child will be maintained for the non-custodial parent, and on exceptional circumstances or reasons that the custodial parent must move, such as for financial reasons or a health situation.

In New York State, you can modify a child custody order if there has been a significant change in circumstances since the last custody order was determined in the case. If there has been a substantial change in circumstances, you can file a modification petition with the help of an experienced family lawyer. The court will apply the same principles as before in determining the custody arrangement, basing the order on what they deem is in the best interests of the child

Child Support FAQs

In situations where one parent has custody of his or her child, that parent, referred to as the custodial parent, can file a petition in Family Court seeking child support from the non-custodial parent. Child support is money that is generally paid by the non-custodial parent to the custodial parent to help contribute to the costs of the child, including their needs and education.

In New York State, basic child support awards are determined by a fixed percentage of parental income, depending on how many children the order is requested for. The percentages used in NY are:

1 child: 17%
2 children: 25%
3 children: 29%
4 children: 31%
5+ children: 35% or more

These standard percentages are multiplied by the combined parental income for earnings up to $136,000. After $136,000, the court can decide whether or not they will continue to follow these percentages.

If your income changes and you are no longer able to afford your child support payments, you can file a petition in Family Court to modify the child support order. In order to modify a child support order, however, there must have been a significant change in either parent’s circumstances, such as a change in income. You must supply proof of this change, through pay stubs, W-2, or tax returns, for instance, and submit the petition immediately after the change occurs.

If you do not abide by a court-ordered child support payment schedule, you are defying an order of the court and can face serious legal penalties. Failing to pay court-mandated child support can result in consequences such as: spending time in jail, garnishing your wages, intercepting your tax refund, seizing your property, suspending your business license, etc.

In New York State, parents are generally obligated to pay child support until the child is 21-years-old. In certain circumstances, however, the child is considered “emancipated” before age 21 and at that point the parents would no longer have to pay child support. A child may be considered emancipated if he or she is married, self-supporting, or is in the military.

It is not required that parents filing for child support have a lawyer. However, because filing for and obtaining child support can be a complex legal process, it is highly recommended that people seeking child support obtain legal representation. If you are in need of a child support attorney in New York State, contact a lawyer from Brian D. Perskin & Associates P.C. for help.

If a parent is given legal custody of their child, but the child’s other parent resides in a state other than New York, it is still possible to secure child support payments in a New York court. You can discuss your case with a Family Court clerk or directly with a New York divorce lawyer at our firm.

If you cannot afford to hire a lawyer to represent you, keep in mind that the Family Court is not like the criminal court and cannot assign you legal representation free of charge. You do not need to have an attorney representing you, but it may be a good idea to do so. If you cannot afford a lawyer and you would like one, please don’t hesitate to contact our firm. We can discuss payment options with you.

Yes. If you disagree with the child support order that was issued, you have the right to file an “Objection.” Our firm will be able to assist you in filing this document. This must be filed in court no later than 30 days after the finalized child support order was sent to you. Keep in mind that the other parent can make a response to your objection. The Family Court will evaluate the nature of your objection, take into consideration any comments by the other parent, and then make a decision.

Only some child support cases go to court. If this is necessary in your case, you will have to submit various documentation to the Family Court such as records of your expenses, records of your income and other documentation such as pay stubs, utility bills, etc. After the court receives documentation from each parent, they will compare and make a decision as to what amount of child support would be appropriate for the non-custodial parent to pay.

Divorce FAQs

The time the divorce process takes varies case by case, and depends on several factors including the nature of the divorce, the parties to the divorce, the county that the divorce papers are filed in, the judge, the state, etc. Generally, uncontested divorces—in which both spouses agree to the divorce and about what will happen with the children, finances, and property after the divorce—take between 4 and 6 months, although they also vary. Complicated divorce cases can take anywhere between six months and two years. Particularly, if the parties are fighting over custody and finances, the case will take longer. If there is a disagreement regarding custody, the process may take about a year or longer, whereas if the parties are only fighting over finances it may be a shorter time frame.

It is strongly advised that parties to a divorce meet with a lawyer because divorce law can be complicated and it is important that each spouse’s interests are represented and advocated for, as well as that the divorce follows the proper legal procedure. If the divorce is uncontested, and all financial and custody issues have been resolved, parties to a divorce can use the Uncontested Divorce Forms Packet from the courts, but even in these cases it is highly recommended that a lawyer is consulted.

Yes you can! If you are unhappy with your current representation, for whatever reason, contact us for a free consultation. Our firm has been representing a diverse clientele for over 20 years, and a portion of our clients have come to us after they had already retained a lawyer elsewhere.

If you decide to make the switch to Brian D. Perskin & Associates P.C., we will file a Consent to Change Attorney and Notice of Appearance with court, and request that your former attorney send us your entire case file.

The process of changing attorneys is quite simple, so do not hesitate to proceed if you aren’t pleased with your current representation!

In New York, there are four grounds for divorce which are based upon the fault of one party. These are: cruel and inhuman treatment, adultery, abandonment for one or more years, or imprisonment for three or more years. You may also apply for a “no fault” divorce, for which the grounds are: living under a separation agreement or court decree for more than one year. Either way, an attorney will be helpful in helping you determine your separation agreement or divorce agreement.

In New York, you file for divorce in Supreme Court, not in Family Court. You are required to file for divorce in the county in which you currently live or the county in which your spouse currently lives.

Even if your spouse does not agree to the divorce, you can still get divorced. It is, however, required that the defendant (the party who does not initiate the divorce) be personally served with divorce papers according to New York State law. Thus, you must know where your spouse is located so that you can have the divorce papers hand-delivered to him or her. Once they receive the papers, you are able to proceed with the divorce whether or not your spouse consents to it.

You must know where your spouse is living so they can be served with the Summons and Verified Complaint for Divorce. If you cannot locate your spouse on your own, you may have to hire a private investigator. Working with an experienced divorce attorney would be incredibly beneficial in this situation.

Once you locate your spouse (now the defendant), and serve them with the Summons and Complaint, you must wait for them to respond to the papers and retain an attorney (if they choose to do so). If they fail to respond within a given amount of time, you and your lawyer may file for a default judgment. This means that your divorce would be automatically granted since the defendant failed to respond.

For more information on what to do in this situation, contact an attorney from Brian D. Perskin & Associates P.C. to discuss your case.

A divorce is uncontested if both parties to the divorce want to get divorced and agree about what will happen with their children, finances, and property after they dissolve their marriage. A divorce is contested if either one spouse does not want to get divorced, if the parties disagree about the reasons for the divorce, and/or if they disagree over what will happen with their children, finances, or property after the divorce. Contested divorces generally take more time and require more visits to Supreme Court. In contested divorces, there is even more need for each party to retain a lawyer.

Divorce is a process by which both spouses are putting a legal end to their valid marriage. Annulment is a process that legally nullifies the marriage altogether, making it as if it never existed. § 140 of Domestic Relations Law details six different grounds for annulment:

  1. The marriage that was entered into is based in fraud;
  2. If one partner entered into the marriage because of duress or pressure from their spouse;
  3. If the parties who married were under the age of 18;
  4. If one of the spouses is unable to understand the nature, consequence or effect of the marriage due to mental incapacity;
  5. If after the marriage, one of the parties becomes incurably insane for at least 5 years;
  6. Either spouse was incurably unable to have intercourse at the time of marriage.

You have 20 days to respond to a Summons and Notice for Divorce. While not all divorces require an attorney, it will be in your best interest to at least meet with a lawyer who practices in your area. By doing so, you can get a better understanding of the papers you were served with.

If you ultimately decide to retain an attorney, your lawyer will file all necessary documents with the court, communicate with opposing counsel, and advocate on your behalf throughout the divorce.

With custody and visitation agreements, a judge will evaluate a number of factors. The ultimate goal is to find a custody arrangement that is in the best interests of the child. A judge will likely evaluate each parents’ relationship with their child, who is primarily responsible for the child’s wellbeing, overall parenting ability, where each parent resides, any history of abuse, etc. Determining a child custody arrangement is something that will vary greatly from case to case, as there are unique characteristics involved in each family dynamic.

In New York State, parents are legally required to support their children until the age of 21. This includes child support. However, there are a few exceptions to the general rule. You do not need to pay child support if the child is married, self-supporting or in the military.

The duration of spousal support is ultimately up to the judge, but starting in January 2016, a new advisory schedule will be applied to these decisions. While the court can still consider special cases, this new schedule will serve as a “rule of thumb” for determining the length of spousal support.

The new advisory schedule states:

  • Maintenance following a marriage of zero to 15 years should last 15 to 30 percent of the length of the marriage.
  • Maintenance following a marriage of 16 to 20 years should last 30 to 40 percent of the length of the marriage.
  • Maintenance following a marriage of more than 20 years should last 35 to 50 percent of the length of the marriage.
  • There is also Pendente Lite, or temporary maintenance, for financially dependent spouses who need to be supported for the duration of the divorce (before post-divorce maintenance rulings are made). These payments end at the conclusion of the divorce.

In New York, all property acquired and income earned during a marriage is subject to equitable distribution. This is a process for dispersing property acquired by or owned by either spouse upon the termination of a marriage. During equitable distribution, the courts will sort out what is considered separate property and what is marital property.

Separate property (property acquired before marriage) usually remains separate and marital property (property acquired during marriage) is distributed equitably between both spouses. The courts will also take into consideration the circumstances surrounding the case and both parties.

An Order of Protection is an official court order that prevents one party (the Respondent) from abusing, stalking, harassing, or showing violent behavior towards the other party (the Petitioner) involved in the case. The Petitioner has the right to call the police if the Respondent violates the Order, and the Respondent will face possible jail time.

A Petitioner will generally request that a Respondent be served with an Order of Protection during divorce or family law cases. While the court reviews a petition for custody, support or visitation, a Temporary Order of Child Support or Custody may be issued. This temporary order will outline custody and child support requirements until an agreement between the parties can be finalized.

There are various types of Orders of Protection, as well as different terms and stipulations, so it is highly recommended that you retain an experienced attorney to assist you with this matter.

There are many divorce and family law firms in the state of New York. What makes our firm different? Lead Attorney Brian Perskin wrote the book on Winning Divorce Strategies. He has more than 20 years of legal experience and has also authored a number of other publications on various aspects of divorce. This firm has extensive knowledge of New York divorce law as well as the ability to creatively apply to each clients’ case.

After scheduling your free consultation with Brian D. Perskin & Associates P.C., you will be asked to fill out a short form that will be sent to you via email. This form will ask for the basics of your case as well as general information. You do not need to have your spouse accompany you to the consultation because we are only able to represent one party in the action. If you have already been served with a Summons, you should bring it with you to the consultation.

While it is not necessary, you may want to bring a pen and notepad to write down key points during the meeting.

The court can appoint a lawyer to represent you if you are unable to pay for one yourself. Alternatively, you may contact your local county bar to speak with one of their volunteer attorneys for assistance on your case.

Brooklyn Bar Association: 718-624-0675

Bronx County Bar Association: 718-293-5600

New York County Lawyers Association: 212-267-6646

Queens County Bar Association: 718-291-4500

Richmond County Bar Association: 718-442-4500

Suffolk County Bar Association: 631-234-5899

Nassau County Car Association: 516-747-4070

Family Law FAQs

While you do not have to hire an attorney, it is definitely advisable that you hire an experienced family lawyer to represent you during your divorce or your child custody case. The issues surrounding these areas are often complex and delicate, and having a lawyer at your side will be extremely helpful.

In New York, there are four grounds for divorce which are based upon the fault of one party. These are: cruel and inhuman treatment, adultery, abandonment for one or more years, or imprisonment for three or more years. You may also apply for a “no fault” divorce, for which the grounds are: living under a separation agreement or court decree for more than one year. Either way, an attorney will be helpful in helping you determine your separation agreement or divorce agreement.

In New York, all property acquired and income earned during a marriage is subject to equitable distribution. This is a process for dispersing property acquired by or owned by either spouse upon the termination of a marriage. During equitable distribution, the courts will sort out what is considered separate property and what is marital property.

Separate property (property acquired before marriage) usually remains separate and marital property (property acquired during marriage) is distributed equitably between both spouses. The courts will also take into consideration the circumstances surrounding the case and both parties.

Spousal support, also referred to as alimony or maintenance, may be awarded to either spouse in a divorce, based on the income of the non-dependent spouse, the duration of the marriage, and other factors. Temporary maintenance and post-divorce maintenance can be awarded to either a husband or wife.

Child support is an obligation for the non-custodial parent (the parent who does not have primary custody of the child or children). The non-custodial parent must pay a percentage of the combined parental income. Usually, for one child the percentage is 17%, for two children it is 25%, for three children it is 29%, and for four children it is 31%. Aside from child support, the non-custodial parent may have to pay a portion of the child’s healthcare and educational expenses.

Prenuptial FAQs

Many people erroneously believe that “prenups aren’t for young people,” “prenups are bad for women,” or that “prenups mean ‘I don’t love or trust you.’” On the contrary, no matter what your age or economic standing, a prenuptial agreement will allow you to retain control of your assets, liabilities, professional licenses, businesses, homes, gifts, and inheritances.

It is especially a good idea to sign a prenuptial agreement if you have assets, such as a home, stock or retirement funds, own all or part of a business, may receive an inheritance, you have children/grandchildren from a previous marriage, one of you is wealthier than the other, one of you will be supporting the other through college or if you have elderly parents or another loved one who needs to be taken care of. High net worth individuals, property or business owners, professionals, investors and persons with children from a former marriage should make it a point to sign a prenuptial agreement before entering into a union.

You will have to follow certain rules in order to ensure your prenuptial agreement is valid. It is advised that you:

  • Secure separate, independent counsel from your spouse
  • That you fully disclose all assets and liabilities
  • That you complete the prenup at least 30 days before the wedding
  • That you follow all legal formalities: the prenup must be in writing, signed by both parties and acknowledge in the same manner as a deed
  • That you do not make the prenup “unconscionable or unreasonable”

The court will consider a prenuptial agreement invalid if one person shows that:

  • The agreement is likely to promote divorce
  • The agreement was written/signed with the intention of divorcing
  • One party was forced into signing
  • The agreement was created unfairly
  • One party did not disclose assets fully

A prenuptial agreement is a tried-and-true way to minimize both the financial and emotional toll of divorce. Without a prenuptial agreement, the state will decide which of you gets certain marital assets. In these instances, assets could end up in the hands of your spouse’s children from another marriage. If you don’t want a divorce court to have the final say-so, then filing a prenuptial agreement is a must.

It is a good idea after 10 years of marriage or so, to update the agreement. You may wish to be more generous. You can also add in a “sunset clause” which makes the contract expire at a certain time (for example, after 10 years of marriage).

As of July 24, 2011, gay marriage was legalized in New York. Because same sex divorce is a new issue, however, even states that allow gay marriage laws are still being ironed out. As a result, if you do not draft a prenuptial agreement, you could end up in highly disputed divorce litigation. Same sex couples, like any other couples, have assets and interests they will wish to protect in the event of a divorce. Drafting a prenuptial agreement is s sound step to protect the financial health of both partners.

While some sites provide you with software and documents whereby you can list your assets, debts, and property rights, taking a “do it yourself” approach is not advised. Even though sites like LegalZoom do provide online prenuptial forms, they can leave you wide open to the consequences you are trying to avoid. On the other hand, when you hire a prenuptial agreement attorney, he/she will interview you thoroughly to understand your objectives and draft the prenuptial agreement to serve these objectives. The approach is personalized and never cookie-cutter, but rather modified to meet the needs of each client.

The most important thing is to do it as early as possible. If you can talk about it before engagement, that might make it a less touchy subject. Explain why you want the agreement and what your concerns are. Sit down and list out your assets before you secure legal assistance. The important thing is to be completely honest and disclose all of your assets. When a party tries to hide something, a judge can toss out the contract.

A prenuptial agreement can agree upon a variety of important subjects including but not limited to:

  • The rights and obligations of both parties
  • Deciding which assets are jointly owned
  • The right to buy, sell, use, transfer, lease, mortgage or otherwise manage and control the marital property
  • The dissolution of property upon separation, divorce, or death
  • The modification or elimination of spousal support
  • The making of a will, trust, or other arrangement to carry out the agreement
  • The ownership rights/disposition of the death benefit from a life insurance policy

A prenuptial agreement can agree upon a variety of important subjects including but not limited to:

  • The rights and obligations of both parties
  • Deciding which assets are jointly owned
  • The right to buy, sell, use, transfer, lease, mortgage or otherwise manage and control the marital property
  • The dissolution of property upon separation, divorce, or death
  • The modification or elimination of spousal support
  • The making of a will, trust, or other arrangement to carry out the agreement
  • The ownership rights/disposition of the death benefit from a life insurance policy

It depends on the complexity of your finances and the amount of negotiation necessary for the agreement. By contacting a New York prenuptial agreement attorney and explaining your circumstances, you should have a better idea about how long the process should take. If your wedding is approaching, it is important you get the ball rolling fast!

If you have some property that was maintained separately while you were married and that was acquired before you were married, this is considered “separate assets.” The increase in value of your separate assets while married can be considered marital assets, however. Even something like a 401(k) can be considered marital property. New York is an equitable distribution state which means that “people get out of marriage, what they put into it.” Sometimes this is difficult, because while a stay-at-home parent did not bring economic wealth into a marriage, they freed up the other parent to work and provided child-care. A prenuptial agreement allows you to alter the definitions of separate/marital assets so that assets are protected in the event your spouse dies or you divorce.

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