White Plains Attorney Answers Family Law Questions
Providing solutions to family law issues
Lauren B. Abramson, Esq. believes an informed client is an empowered client. We take the time to answer any questions you have regarding your New York family law case. Here are answers to many of the questions our clients frequently ask:
General family law questions
- Do I need a family law attorney for a divorce?
- Should I record my child’s phone calls with my ex-spouse?
- What are the residency requirements for getting a divorce in New York?
- Can I file for a divorce if I don’t know where my spouse is?
Child custody and visitation
- What is the difference between joint custody and sole custody?
- Do New York courts favor mothers over fathers or fathers over mothers when it comes to awarding custody?
- What do courts consider when deciding what’s best for a child?
- I pay child support to my ex-spouse for my children I had with her. However now I have a new spouse and new children. Can I have my support payments to my first spouse lowered?
These questions and answers are provided for informational purposes only and do not constitute legal advice. Consult an experienced family law attorney about your specific case. Informed decisions help you avoid undue complications in the future. Lauren B. Abramson, Esq. is an experienced New York attorney who handles family law cases throughout Westchester County and the surrounding areas. Call our office at 914-908-6829 or contact us online to set up an appointment.
General Family Law
Even if you don’t think your spouse will fight the divorce, a family law attorney’s fees are money well spent. If you take a do-it-yourself approach, a small mistake can end up costing you thousands of dollars down the road. An experienced attorney makes sure your interests are protected.
It is prudent to consult an attorney before recording a phone call without the consent of both parties. New York and federal law allow either party to a phone conversation to record the conversation without the knowledge of the other. However a dozen U.S. states require the knowledge and consent of both parties.
You can file for divorce in New York, if any of the following is true:
- Your marriage took place in New York and at least one of you is a resident of New York when the divorce action is commenced and has been a New York resident for a continuous period of one-year immediately before the divorce action is filed.
- You and your spouse have resided in New York as a married couple and at least one of you is a resident of New York when the divorce action is commenced and has been a resident for a continuous period of one-year immediately before the divorce action is filed.
- The cause of, or grounds for, the divorce occurred in New York and at least one of you is a resident of New York when the divorce action is commenced and has been a resident for a continuous period of one-year immediately before the divorce action is filed.
- The cause of, or grounds for, the divorce occurred in New York and both of you are residents of New York at the time of the filing of the divorce action.
- Either spouse has been a resident of New York for a continuous period of at least two years immediately preceding the filing of the divorce action.
Yes. If you can demonstrate that the whereabouts of your spouse are unknown, the court can authorize you to serve the divorce complaint by “substituted service.” Substituted service can include service on a close member of your spouse’s family or service by publication in a newspaper of general circulation.
Child custody and visitation
In New York, there are two types of custody. Legal custody means a parent has the authority to make important decisions on behalf of the minor child. Physical custody refers to the parent who provides the primary home for the child. Legal custody can be joint or sole and physical custody can be joint or sole. Believing that the child benefits when both parents are actively involved, New York courts generally are not inclined to award a parent sole legal custody.
Under New York law, courts must not be biased in favor of one parent on the basis of gender. Custody determinations must be based on an analysis of what is in the best interest of the child.
When making custody decisions, courts consider a variety of factors, including:
- Which parent has been the primary caregiver
- The parenting skills of each parent
- The mental and physical health of the parents
- Any history of domestic violence
- Work schedules and childcare plans of each parent
- The child’s relationships with siblings and other family members
- The child’s wishes, if the child is mature enough to have a reasoned opinion
- The ability of each parent to cooperate with the other parent and encourage a relationship with the other parent
New York courts follow the state’s child support guidelines unless the judge determines that the support payment calculated under the guidelines is unjust. One factor a court can consider in deciding whether to deviate from the guidelines is the needs of other children of the noncustodial parent. However, many support agreements have language specifically stating that child support will not be modified based upon after born children. It is not prudent, however, to attempt to ask the court to change your support obligation without the assistance of a family law attorney. Your lawyer will know how to file a motion for modification, which may or may not be successful, depending on the facts of your case.
Unlike child support, there is no formula for calculating alimony. There have been recent changes in this area of the law and further changes are expected. Currently, the court determines if an award of alimony is appropriate, and if so, will apply the 20 factors listed in the Domestic Relations Law:
- The income and property of the respective parties including marital property subject to equitable distribution
- The length of the marriage
- The age and health of both parties;
- The present and future earning capacity of both parties
- The need of one party to incur education or training expenses
- The existence and duration of a premarital joint household or a pre-divorce separate household
- Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include acts of domestic violence.
- The ability of the party seeking alimony to become self-supporting and if applicable, the time and training necessary to do so
- Reduced or lost lifetime earning capacity of the party seeking alimony as a result of having forgone or delayed education, training, employment or career opportunities during the marriage
- The presence of children of the marriage in the homes of the parties
- The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity
- The inability of one party to obtain meaningful employment because of age or absence from the workforce
- The need to pay for exceptional additional expenses for the children of the marriage, including schooling, daycare and medical treatment
- The tax consequences of each party
- The equitable distribution of marital property
- Contributions and services of the party seeking alimony as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
- The wasteful dissipation of marital property by either spouse
- The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
- The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties
- Any other factor that the court finds to be just and proper.
There is no rule for how long can last, but there are specific events that trigger termination of alimony. If the receiving party dies, marries, or cohabits with a romantic partner, alimony terminates.