For either party, divorce proceedings can be riddled with worry and uncertainty, but you don't have to go through them alone. Here at Peter L. Cedeño & Associates, P.C., we strive to get our clients the answers they need, when they need them. Below, you will find a brief list of frequently asked questions about divorce. If you need more answers or an elaboration on any of the information provided here, don't hesitate to contact our New York City divorce lawyer—we're ready to take your call today.
What is the difference between contested and uncontested divorces?
Once a divorce is filed, there two different routes it can take towards its completion, both dependent on the couple's level of collaboration. If the couple comes to an agreement on all the terms of the divorce (meaning the division of assets and property, child custody, etc.), then the divorce is considered uncontested.
However, if the couple cannot agree on these terms, then the divorce is considered contested. A judge will decide the terms of a contested divorce. While uncontested divorces tend to be quicker and easier to resolve, it is still crucial for both parties to seek counsel from a divorce attorney to ensure their best interests are protected.
What can I expect for child custody?
In the case where a couple filing for divorce has children under the age of 18, child custody is often at the forefront of couple's priorities. There are several kinds of child custody recognized in the State of New York. First, there is physical custody, which concerns which parent the children actually live with.
There is also legal custody. Adults who are granted legal custody can make parenting decisions concerning the children's health, education, and religious and cultural upbringing. Joint legal custody, in which both parents can make important decisions for their child, is possible in the State of New York.
How is child custody decided?
If the couple cannot come to an agreement on child custody, the decision then lies with the court. The court must determine who the "primary caretaker" of the child is. This is the adult who provides for most of the child's everyday needs. In many cases, the primary caretaker is also the adult who receives physical custody of the child.
There are other factors, as well. To make a well-informed decision on custody, the court will often review the living situation of each parent, whether or not there are other people living at those respective residences, prior criminal records, proximity to schooling, drug and alcohol use of either parent, and so on. Clearly, child custody is one of the most important factors in resolving a divorce, and the court takes the decision seriously.
How is spousal support determined?
Before a divorce is finalized, there is a kind of support called temporary maintenance that can be enforced by the court. There is a formula to determine the maintenance payment amount—it can be found online. A legal professional may help you calculate these payment amounts.
As part of the final divorce terms, spousal support is determined by the court based on the couple's lifestyle while they were married. Other factors, like the ability to continually pay support, are also considered. If there a significant change in circumstances for either spouse, spousal support can later be reviewed and, if the court sees fit, adjusted.
How is child support calculated?
Parents with physical custody of children are often eligible for child support from the other parent. Child support payments calculated specifically based on the income of the noncustodial parent (the parent without physical custody).
Following certain deductions, like Social Security and Medicare, a certain percentage of the income is then ordered to be paid for child support. This percentage increases with the amount of children the couple has. In the case of one child, it's 17%. For two, 25%. For three, 29%, and so on. Child support must be paid until the child is 21 years of age.
What if I can't pay my child support?
If there is a radical change in the noncustodial parent's income, he or she can ask the court to officially change child support payments. They can do this by filing a "petition for modification." Even if the change in child support payments is agreed on or expected by both parents, it is crucial that the paying parent file this petition with the court.
Can I get information from my spouse about our finances and properties?
If you suspect your spouse is not disclosing everything to you, inform your attorney about what you can do. They may decide upon a deposition – a formal interview under oath – with your spouse or submit an inspection demand – a written request for certain documents. Additionally, if your attorney needs information from an organization or business related to your spouse, they can create a subpoena that requires them to appear in court, or at the attorney’s office, with the information requested.
Can I cancel a divorce once it has begun?
If you and your spouse have reconciled and both agree to stop the divorce process, it can be done, depending on your timing. If a judge has not made an official ruling, you both can file a request to cancel it, typically known as a notice of revocation. Expect to pay additional filing and court fees just for the cancellation, though.
What are annulments and separations?
If you are able to get an annulment – difficult in most cases – the court will act as though your marriage never existed, avoiding many issues brought up in a divorce. A separation is a request to divide your property and establish spousal and child support without actually ending the marriage.
Will I need a lawyer for my divorce?
If your spouse is being uncooperative – or if the circumstances of your divorce involve a great deal of property or complications – you should seek legal counsel from a family law or divorce attorney. Even if you only need someone to act as a mediator between you and your spouse, or if you are just after sound advice involving the matter, an experienced attorney can help you handle all aspects of your divorce case.