New York

Determining the Value of Professional Licenses, Professional Distinctions and Honors, and Businesses: Under New York Law (but not most other states), the profession or professional career potential of one spouse is considered marital property. While initially applied to a medical license, courts in New York have extended the principle to other careers requiring licenses or the development of expertise. Where it is difficult to determine the actual interest involved, the court will make a monetary distributive award.

The value of a license is the enhanced earning capacity it provides. This value is determined by the present value (average annual earnings with license minus average annual earnings without license) multiplied by the number of years remaining in worklife, multiplied by the projected wage increases. Where a spouse is actually receiving a salary, then the enhanced earning capacity is based on the actual earnings rather than statistical earnings for the profession.

Professional honors have been valued in the same way as licenses to the extent that they provide a provable enhanced earning capacity and the spouse not in possession of the honor contributed to its attainment.

In cases where a professional does not put his or her license to its “best use”, i.e. realize the enhanced earning potential that the license would provide; the court will have to determine whether or not to value the license as if the full earning potential were being realized based on the particular facts of the situation.

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a valid basis for a judgment of divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse, that it is not safe or proper for the parties to continue to live together. Examples of acts that Courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks upon a spouse; frequent screaming, profanity or other verbal abuse; staying away from the house too often without an explanation; flaunting a romantic relationship with another person; and wrongfully accusing the other spouse of adulterous relations with another man or woman. Intentional refusal by a spouse to have sexual relations may be considered cruel and inhuman treatment where it actually has a physical effect upon you. Alcoholism or drug addiction be a basis if the spouse becomes violent or abusive when under the influence so that you fear for your health and safety. Each case must be analyzed based upon its own, unique facts. The acts or conduct on which the cruel and inhuman treatment is based must have occurred within five years prior to the commencement of the action to be considered by the Court, unless it is part of a continuous course of conduct. There are no defenses to cruelty. For example, mental illness, justification or forgiveness is not a defense.

Pursuant to Section 170.6 of New York’s Domestic Relations Law, a Marital Separation Agreement May Serve as the Legal Ground for Divorce

Pursuant to Domestic Relations Law Section 170.6, a separation agreement may be used as the basis for a divorce on or after its 1 year anniversary. The 1 year time period runs from the proper execution of both husband’s and wife’s signatures before a notary public, not from the filing date. An agreement cannot take into account, for purposes of calculating its maturity, any time spent already separated prior to the agreement.

The agreement must be filed in the County of residence of either Plaintiff or Defendant. Filing of the agreement is normally done prior to the commencement of the action, but may be done simultaneously; it may also be done simultaneously with submission for placement on the Uncontested Calendar (filing of Note of Issue). In any case, the circumstances under which the agreement was filed must be accurately stated in the pleadings. If a separation agreement is used as the basis for a divorce, the pleadings and other court papers should contain the following language:

“Plaintiff and Defendant have lived separate and apart pursuant to a written agreement of separation. The agreement has been acknowledged by both parties in the manner required for a deed to be recorded. The agreement has been filed with the County Clerk of ________ County on (prior date) or has been filed simultaneously with the summons and complaint, or has been filed simultaneously with the note of issue. Plaintiff has substantially performed according to the terms of the agreement.”

A copy of the marital separation agreement should be attached to your uncontested complaint for divorce. In NY, a marital separation agreement can simultaneously serve several different purposes: (a) first, it enables the parties to resolve their issues prior to beginning a divorce case, thus ensuring that their divorce proceeding will be uncontested; (b) second, the separation agreement provides the legal basis for a NY judgment of divorce. For these reasons, legal separation agreements are frequently entered into prior to the commencement of a NY uncontested divorce case.

In October, 2005, Mayor Bloomberg signed the Local Civil Rights Restoration Act of 2005 (the “LCRRA”) into law, amending the New York City Human Rights Law (“NYCHRL”).

The LCRRA adds “partnership status” to the list of classes protected under the NYCHRL. The amendment defines “partnership status” to mean the status of being in a domestic partnership under the New York City Administrative Code (the “Code”). The Code, in turn, considers a domestic partnership to exist when two people share “a close and committed personal relationship” and “live together and have been living together on a continuous basis.” While domestic partners must generally register their partnerships with the New York City Clerk, the Code makes clear that the City will recognize a marriage, domestic partnership or civil union lawfully entered into under the laws of another state.

First, you may elect to follow a strict calculation of child support pursuant to the Child Support Standards Act (“CSSA”). (see “How Is Child Support Calculated?”). Based on the information you provide to us, Divorce Today will prepare divorce papers which contain an order requiring payment of a child support amount as determined through the appropriate calculations.

At bottom, the amendments to the NYCHRL grant civil rights protections to individuals who believe that they have been discriminated against for sharing a close, committed relationship with another person. Individuals who believe that they have been discriminated against for being in a domestic partnership (which is broadly defined under the law) need not establish that they were terminated or demoted. The law only requires that they suffer action that is ?reasonably likely to deter a person from engaging in protected activity?.

The Trend Toward Stricter Interpretation of the Cruel Treatment Ground for Divorce in New York

As I have frequently discussed on this website in the past, it is ironic (and unfortunate) that as the rest of the country has rapidly moved toward a no fault divorce regime, New York’s courts continue to squander valuable resources by requiring litigants and their attorneys to contemplate the minutiae of what constitutes sufficiently egregious marital misconduct under our antiquated fault-based divorce statute. Many years after most states enacted laws that have rendered ?fault? increasingly irrelevant to divorce, New York’s courts have subjected claims of cruelty to surprisingly strict scrutiny.

Domestic Relations Law (DRL) 170(1) provides:

§ 170 Dom. Rel. Action for divorce.

This Statute requires a party to establish both the specific acts of cruelty perpetrated by the defendant, as well as the effects of that treatment. By forgetting or failing to establish the effects of the defendant’s actions, plaintiffs have failed to satisfy the statute’s requirement that the conduct endangered their well being so severely as to make continued cohabitation “unsafe or improper”. In Hearst v. Hearst, 40 A.D.3d (1st Dept. 2007), the Appellate Division upheld the lower court’s decision that denied the plaintiff-husband’s claim for divorce, observing that the husband had failed to demonstrate that the deterioration of his health was actually caused by the defendant’s conduct.

In contested divorce actions, it is essential for litigants to provide detailed testimony about both the defendant’s conduct, as well as the deleterious effects of that conduct. Until New York’s legislature acts to bring our antiquated divorce laws into the 21st century, divorce litigants and their attorneys are have no alternative than to focus on minutiae surrounding alleged misconduct.

WHAT CONSTITUTES “CRUEL AND INHUMAN” TREATMENT?

• The treatment of the Plaintiff by the Defendant must rise to the level that the physical or mental well being of the Plaintiff is endangered and making it unsafe or improper for the Plaintiff to continue living with the Defendant.
• You cannot obtain a divorce simply because you do not get along with your spouse (“irreconcilable differences”) or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.
• All acts must have happened within five (5) years of the date the summons is filed with the County Clerk.
• In describing the specific acts of cruelty, you must be clear and to the point. You must supply the court with details like dates and places. If you do not remember the exact date, use the words “on or about”.
• After describing the acts of cruelty you should conclude with the following language: “The conduct of the Defendant was cruel and inhuman and so endangered the physical or mental well being of the Plaintiff as to render it unsafe or improper for the Plaintiff to cohabit with the Defendant.”

Child Support responsibility is based, in part, on the payer's gross income. If you have certain deductions, your income for child support purposes is reduced or "adjusted."

The court multiplies your "adjusted" gross income amount by the guideline percentage for the number of children for which you are ordered to pay. These percentages are:

• 17% for one child;
• 25% for two children;
• 29% for three children;
• 31% for four children, and
• at least 35% for five or more children.

In typically, a share of child care, medical, and educational expenses are added to the appropriate percentage and the resulting number is the basic child support amount.

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Since 1999, DivorceToday.com has helped thousands of New York residents obtain quick, easy, and inexpensive uncontested divorces. We are NY’s largest divorce preparation service, with offices in Manhattan’s Empire State Building. Our trained professionals prepare all of the forms needed to complete your no fault NY divorce. We also offer online, blank NY divorce forms kits for download, plus related NY matrimonial forms, including QDRO’s to divide pensions and 401k plans.

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NY DIVORCE FORMS

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Why is it important to establish paternity?

By establishing paternity for the child, the parents are ensuring that the child has the same rights and benefits as children born to married parents.

How does the child benefit from the establishment of paternity?

There are many emotional and financial benefits the child receives from paternity establishment including:

1. Knowing that the parents cared enough to acknowledge legal paternity.
2. Having their father’s name on their birth certificate.
3. Being covered by medical or life insurance from either parent, if available.
4. Receiving financial support from both parents, including:
5. Receiving information on family medical history.

What benefits does the mother receive from the establishment of paternity?

The mother receives benefits from paternity establishment which include:

1. Help in sharing of parental responsibility;
2. Information about the father’s medical history;
3. Improving the financial security of the family; and
4. Medical insurance coverage for the child from the father’s medical insurance, if available.

What benefits does the father receive from the establishment of paternity?

The father's benefits from the establishment of paternity can include the following:

1. Legally establishing their parental rights;
2. Having their name on their child’s birth certificate;
3. Having the right to seek court ordered custody and visitation; and
4. Having the right to be informed and have a say in adoption proceedings.

How do unmarried parents establish paternity?

There are two ways for unmarried parents to establish paternity: Signing a voluntary form called an Acknowledgment of Paternity (available from hospitals, local district child support offices, and local birth registrars); and Filing a court petition to have the court determine paternity.

What if there is doubt as to the identity of the biological father?

If there is any doubt as to the identity of the biological father, do not sign a voluntary Acknowledgment of Paternity form. If this is the situation, it is best to let the court determine paternity. When the matter goes to court, the court will order the mother, child, and alleged father to submit to certain genetic or DNA tests. Based on the results of the test, the court will determine whether the alleged father is the legal father of the child. If the alleged father is shown to be the biological father, the court will issue an order that says he is the legal father of the child. This is called an order of filiation. After the order of filiation is issued, either party can pursue seeking an order for child support.

Pursuant to New York's Domestic Relations Law (DRL) § 170(2), abandonment constitutes one of the legal grounds for a judgment of separation.

New York courts have consistently held that for an act of abandonment to constitute sufficient grounds for a judgment of separation, the defendant-spouse's departure must have been: (a) voluntary; (b) unjustified; and (c) permanent. The Plaintiff must allege that it was the Defendant who departed. Sacks v. Sacks, 26 A.D.2d 575 (2nd Dept. 1966). Plaintiffs who allege that they (rather than their spouses) left the marital residence will not be awarded separation judgments under this ground, and they may wish to consider one of the alternative grounds (such as cruelty).

DRL § 170(2) does not set forth a minimum duration of the abandonment for it to support a judgment of legal separation. In contrast, DRL § 170(2), which sets forth the basis of a divorce based on abandonment, explicitly requires that the abandonment last at least one year. Notwithstanding the failure of DRL § 170(2) to set forth a minimum time period, the fact is that New York courts do look to the length of the abandonment as one of the principal factors in determining whether or not the defendant's alleged conduct justifies a judgment of separation under New York law. If nothing else, the duration of the defendant's absence is relevant to whether or not the Defendant's actions were wrongful and intended by him or her to be permanent.

Divorce cases sometimes present the challenge of dividing assets that are difficult to value as a result of uncertainties and external forces that are beyond the control of the parties. The courts in New York have held that the existence of difficulties in valuation should not prevent the courts from distributing assets so as to ensure that both spouses have the opportunity to share fairly in the economic fruits of their marital partnership.

Retirement assets, such as pension rights, qualify as marital property that is subject to equitable distribution. Majauskas v. Majauskas, 61 N.Y.2d 481, 489. Both vested and nonvested pensions are subject to equitable distribution. Burns v. Burns, 84 N.Y.2d 369 (1994). In Burns, the Court of Appeals specifically rejected the husband's contention that the uncertainty associated with a nonvested pension precluded its distribution, noting that: (a) the uncertainties can be factored into an analysis of a pension's present value; and (b) alternatively, even if no present value is ascertainable, the court could allocate future payments between the spouses by entering a qualified domestic relations order (QDRO). Id. at 377.

The decisions of the Court of Appeals in Majauskas and Burns reflect New York's public policy in New York of broadly defining marital property and distributing such property, even in situations where valuations are difficult.

Our downloadable QDRO forms meet all of New York’s legal requirements.

Typically, QDRO's are viewed as mechanisms to effectuate the distribution of retirement assets, such as 401(k)'s and pensions. However, they can also be used as effective tools to enforce court-order support obligations. This is facilitated by the expansive definition of the term "domestic relations Order" that is set forth in 29 U.S.C. § 1056(d)(3)(A) and 29 U.S.C. 1056(D)(3)(B)(i)(I). Under those sections, domestic relations orders include judgments, decrees or orders that are made pursuant to state domestic relations laws whose contents satisfy ERISA's mandates and which relate "to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant.

In Renner v. Blatte, 650 N.Y.S.2d 943 (1996), the use of a QDRO to secure both arrears and future support obligations was approved by the Supreme Court in New County. Courts in New York have not hesitated to issue QDRO's as enforcement tools, and it is well accepted that "[d]efaults in support and maintenance obligations may be enforced by QDROs against pension fund accounts. See Keegan v. Keegan, 204 A.D.2d 606; Bumstead v. Rasisbeck, 230 A.D.2d 759.

However, courts are limited by the restriction, imposed by virtue of ERISA, that payments made not be directed in a manner that is contrary to the terms of the subject plan. Consequently, lump-sum payments are oftentimes not feasible.

New York was the last state in the United States to offer its residents a no-fault basis for obtaining a judgment of divorce. New York's no-fault divorce statute became effective on October 12, 2010. The new no-fault ground for divorce is codified in New York's Domestic Relations Law as Section 170(7), which provides as follows:

The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

The procedures and forms applicable to no fault divorce are substantially similar to those which are required for the pre-existing, fault grounds (abandonment, cruel treatment, etc.).

In most circumstances, an individual interested in obtaining a uncontested divorce should file their divorce complaint in the county where either they or their spouse resides. However, one exception to this rule is New York County (Manhattan) which accepts divorce filings from individuals regardless of their county of residence.