Matrimonial and Family Law
The matrimonial and family law attorneys at Bailey Johnson have 26 years combined experience in the negotiation and litigation of all areas of matrimonial and family law including divorce, child custody, support and the drafting of marital agreements. Our attorneys have represented clients in Family Court and Supreme Court throughout the Capital District and in some cases, throughout the State of New York.
While the matrimonial and family law attorneys at Bailey Johnson approach each client matter with the goal of obtaining a fair settlement for our clients, they appreciate the fact that not every case can be settled. When a client’s spouse is being unreasonably or unnecessarily combative, our attorneys will not hesitate to pursue litigation if necessary. , our attorneys will not hesitate to pursue litigation if necessary. The attorneys at Bailey Johnson have the experience necessary to vigorously represent our clients at the trial and appellate level.
The matrimonial and family law attorneys at our firm appreciate the fact that clients who are involved with a divorce or custody/support matter are naturally experiencing a certain amount of fear and anxiety. Our attorneys are sensitive to the myriad of different emotions that a client in this situation is dealing with, particularly when going through a divorce. Our philosophy is that one of the best ways for a client to cope with the anxiety and stress that they are feeling is to be armed with knowledge about the law. Only when a client is properly informed about how the law impacts the facts of their case can they obtain the peace of mind necessary to look to a brighter future for not only themselves but their children.
In an effort to give our prospective clients some measure of peace of mind, below is a brief summary of the laws in the State of New York as relate to divorce actions in Supreme Court and legal proceedings in Family Court.
Distinctions Between Family Court and Supreme Court
Many potential clients are uncertain about the difference between Family Court and Supreme Court. Conflicts that can be resolved in Family Court are custody and visitation of minor children, child and spousal support, paternity, orders of protection, neglect, juvenile delinquency and PINS (Person In Need of Supervision) proceedings. Both individuals who are married and unmarried can seek relief in Family Court. However, once an action for divorce is commenced against a married litigant, Family Court loses jurisdiction of issues related to custody and support and those issues must then be dealt with in Supreme Court as part of the divorce action.
Many potential clients are surprised to learn that Family Court does not have jurisdiction to grant individuals a divorce. Only Supreme Court is capable of grating someone a divorce. Issues that must be resolved within the context of an action for divorce are equitable distribution (property distribution) of marital assets, custody of children of the marriage, child support, spousal support and legal fees.
It is critical that anyone who is considering the commencement of a legal proceeding which involves their children to file the appropriate action in the appropriate court. Filing an action in the wrong court can negatively impact a client’s matter. For more information about where and when you should file a particular legal action, please contact the matrimonial and family law attorneys at Bailey Johnson for an initial consultation.
Equitable Distribution (Property Distribution)
When one party files for divorce against their spouse, they can attempt to work out a settlement or they can allow a Court to make a decision about issues such as equitable distribution, custody and support. If a Court is to make a decision, they will distribute marital assets equitably. Equitable does not always mean “equal” but is based on a variety of factors, such as the duration of the marriage, each spouse’s respective contributions to the marriage, and the age and health of the parties. Every case is as unique as the parties involved; there are no black and white rules for the distribution of assets.
Assets are divided into two categories: separate property and marital property. Separate property includes money or assets acquired prior to marriage, money or assets gifted to one spouse from someone outside of the marriage, such as the spouse’s parent, inherited property and personal injury awards. If the party holding the asset keeps the asset separate in nature, it will be deemed to be his or her asset not subject to equitable distribution. Everything else acquired during the marriage, including gifts from one spouse to another, is deemed marital in nature and subject to division by the Courts.
Many potential clients are uncertain about what constitutes a marital asset. These include assets that are acquired during the marriage, such as real and personal property, retirement and investment accounts, business interests, automobiles, furniture and furnishings, educational degrees and professional licenses. In some cases, potential clients are surprised to learn that they have more marital assets than they otherwise thought existed.
Because each case is unique, our experienced divorce lawyers can provide the guidance necessary to give potential clients a realistic idea regarding equitable distribution of their assets and property. It is imperative that you have the right advice from a lawyer necessary to identify those assets to which you are entitled so that you can seek your rightful share of them.
Grounds for Divorce
There was a time in New York State when an individual who wanted a divorce could only obtain one if they could show the other spouse was at fault. With the implementation of New York’s “no-fault” statute in October, 2010, it is no longer necessary to sue for divorce based on fault related grounds. Meaning, you and your spouse can divorce without having to accuse the other of wrongdoing which historically has not always been the case. Prosecution under the no-fault statute allows for more open negotiation for settlement purposes but it does not necessarily mean that the divorce process will be easier for the person initiating the action as each matrimonial issue must be fully resolved either by settlement or trial in order for the judgment to be issued.
New York continues to allow for the commencement of an action for divorce based on fault grounds as well. The grounds one spouse can use to sue the other for a judgment of divorce are: cruel and inhuman treatment, abandonment for one or more years, confinement in prison for three years or more, adultery, the parties have lived apart pursuant to a decree or judgment of separation for one year or more, the parties have lived separate and apart pursuant to a written separation agreement for one year or more, and the irretrievable breakdown of the marital relationship for six months or longer.
Anyone contemplating a divorce should be aware that in some limited circumstances, issues of equitable distribution and spousal support can be impacted by a particular ground for divorce. Knowing how your property or spousal support can be impacted, negatively or positively, by a particular ground for divorce is a critical step in the divorce process and only an experienced and knowledgeable divorce lawyer can explain this to you.
Custody and Visitation
Issues related to the custody and visitation of minor children of the marriage can be resolved in either Family Court between non married persons, between married persons residing separately or prior to commencement of an action for divorce. The issues may also be resolved in Supreme Court within the context of an action for divorce.
There are two distinct types of custody that the Courts consider: legal custody and physical/residential custody. Legal custody relates to a parent or guardian’s ability to make decisions for and on behalf of the child and physical/residential custody relates to where the child resides.
The parties are always free to agree to a custodial arrangement that they feel is in their children’s best interests. If they are unable to agree, either party may seek judicial intervention. When in the hands of the Court, the Judge assigned to the case must always determine the child’s best interests when deciding who should have legal and physical custody of a child. Factors considered in making such a determination include prior or existing custodial arrangements, maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, the willingness of each parent to foster a relationship with the other parent and the effect of any domestic violence upon the child.
Custody and visitation issues only apply to children under the age of 18.
In almost all custody matters, whether it be in Supreme Court or Family Court, an Attorney will be appointed to represent your children and advocate on their behalf. The positions that this attorney takes in a custody proceeding can routinely impact whether or not you are able to obtain the custody arrangement that you want. Our attorneys are routinely appointed by the Courts to represent children in custody cases and as such, they have the unique perspective necessary to present your case to your children’s attorney in a manner that will increase your changes of success.
For those individuals who find themselves in the middle of a custody dispute, knowing what factors the Court considers when deciding which parent will have custody is crucial. What makes this issue all the more significant is that the party who has primary/residential custody of a child generally receives child support from the other party. Knowing how a potential custody arrangement can impact your short term and long term financial future as well as the emotional well being of your child is of paramount concern for most clients. The attorneys at Bailey Johnson can provide you with the information that you need to understand how a custody proceeding can impact your life and that of your child.
The parent considered to be the “non-custodial” parent under the law will be ordered to pay a percentage of his or her income to the “custodial” parent for the support of the parties’ child. The Child Support Standard’s Act, New York’s law that governs child support, bases the amount of child support paid on the number of the parties’ children residing in the custodial parent’s household. The applicable percentages are as follows and are calculated based on the parties’ combined gross income after the deduction of FICA (Social Security and Medicare taxes):
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- No less than 35% for five or more children
A variety of factors will be considered by the Court if a deviation from the Child Support Standard’s Act percentage is appropriate.
If the order of support was issued in the State of New York, the non-custodial parent’s child support obligation terminates upon the child’s 21st birthday or earlier if the child is otherwise emancipated prior to his/her 21st birthday.
The matrimonial and family law attorneys at Bailey Johnson can provide you with the advice necessary to calculate a potential child support obligation taking into consideration the unique set of facts specific to your case. Our attorneys can also explain to you how and when Courts in New York State will deviate from the Child Support Standards Act and under what circumstances child support can be terminated prior to a child attaining the age of 21 years. An individual who is unaware of these issues runs the risk of paying more than they are required or accepting less than they are entitled.
Spousal Maintenance (previously referred to as “alimony”)
In a marital relationship, each spouse is responsible to financially support the other. Under certain circumstances, either the Family Court or the Supreme Court may order the higher income earning spouse to financially support the lower income earning spouse for a period of time or indefinitely in some cases. In an action for divorce, if the lower income earning spouse requests spousal support, a formula is applied to the parties’ combined incomes and this formula determines the presumptive amount of spousal support to be paid on a temporary and permanent basis. Our attorneys can assist you in determining if you are entitled to spousal support or if you may face paying an award of spousal support.
New York law now provides for a statutory presumption that the higher income earning spouse will pay some portion of the lower income earning spouse’s legal fees in an action for divorce. The presumption can be rebutted under certain circumstances. Our experienced divorce lawyers can guide you in the probable determination of your entitlement to a contribution toward your legal fees by your spouse, or in the alternative, your responsibility toward payment of your spouse’s legal fees.
Other Legal Proceedings
The area of matrimonial and family law is not limited to divorce, custody and support. Many of our clients have more complicated needs as relates to this area of the law. Our matrimonial and family law attorneys have substantial experience and routinely represent clients in the drafting of marital agreements such as separation agreements, prenuptial agreements and postnuptial agreements.
Since the needs of a family evolve as time goes on, the needs to make adjustments to a custody or support arrangements sometimes also change. A substantial portion of our matrimonial and family law practice is dedicated to proceedings that occur after the divorce is finalized. Our attorneys routinely represent clients who are attempting to modify custody and support arrangements and they also represent clients who are happy with the current arrangement and are attempting to prevent these modifications.
In circumstances where one party is not complying with the terms of a divorce agreement/judgment, our attorneys have experience representing clients in various post-judgment disputes including contempt proceedings.
To speak with one of the matrimonial and family law attorneys at Bailey Johnson to explore your rights an obligations, please call us today at (518) 456-0082