Honesty, Integrity, Affordability
Grounds for Divorce: In 2010, New York joined other states in the country in instituting its version of “no-fault divorce” where either spouse may obtain a divorce by swearing that the relationship between the parties has “broken down irretrievably for at least six months.” If Domestic Relations Law §170(7) – Irretrievable Breakdown in Relationship is not proven and plead, the divorce must proceed on one of the six provisions outlined by the state prior to 2010, i.e., abandonment, adultery, cruel and inhuman treatment, etc..
New York’s “no-fault divorce” law still requires that other important aspects of a case, if there is disagreement, are resolved by either written stipulation or settlement or proceeds to trial, including matters relating to equitable division of property, custody, child support and spousal support.
Property Division: New York is an “equitable distribution” state in which courts have broad discretion to equitably divide "marital property." New York's definition of marital property includes not only bank accounts (checking, savings, money market), real estate, retirement plans, deferred compensation, stock options, businesses and similar assets, but also licenses, degrees and professional certifications. An “equitable” division of these assets does not always mean an equal distribution, and some property may even be considered “separate property” not subject of equitable distribution. Remember, too, that New York courts may also distribute marital debt, such as outstanding loans and consumer credit card debt.
Ms. Jansen is experienced in complex asset division including:
- Homes and real estate
- Family businesses
- Retirement investments
- Stocks, bonds, executive interests
- Savings accounts
- High-asset divorce
Ms. Jansen will help you to understand your rights, options and potential obligations under New York’s current Domestic Relations Law (“DRL”) and under the current and ever-evolving case law. She will work zealously to protect your rights and financial interests at the time of divorce.
Spousal Support: During separation or divorce, spouses often require and are entitled to spousal support commonly referred to as maintenance. There are generally two types of permanent spousal support in New York State: non-durational (where the period of maintenance is not fixed) or durational (where the Court fixes the period of time over which a spouse received maintenance), as well as temporary payments. If you are the non-monied spouse, you want to ensure that you collect the full amount of maintenance you are entitled to receive. Similarly, if you provide the principal source of income in your household, you want to protect yourself against unreasonable and impossible payment obligations. In 2010, the legislature added a number of different factors that courts must take into consideration when making a determination as to a final award of maintenance.
Determining your right to collect or your obligation to pay maintenance, as well as its duration and amount, involves analysis of the parties' incomes (W-2 or 1099 wage earner vs. small business owner vs. “cash” occupations), their assets, tax consequences, lifestyle analysis, property division and vocational capacities. From the stay-at-home parent to the well compensated business person, it is important to know your rights and work with an experienced attorney you can trust.
Child Support: Child support determinations are based on statutory law known as the Child Support Standards Act. The Child Support Standards Act provides a set formula for determining basic child support payments and mandatory add-on costs for expenses such as health insurance premiums, unreimbursed costs such as co-payments and pharmaceutical expenses, as well as child care costs while the custodial parent is working or seeking employment. A copy of the 2011 Child Support Standards Act Guidelines Chart can be found at https://www.childsupport.ny.gov/dcse/pdfs/cssa_2011.pdf
In New York both parents are responsible for their children’s support according to their pro rata share of combined parental income. Sometimes, though, it is difficult to arrive at a fair determination of true combined parental income. Courts are empowered to impute income to non-working or “underemployed” parents in setting child support. However, the evidence which must be presented to a Court in order to allow them to impute income must be competently presented.
As part of its extensive overhaul of New York’s Domestic Relations Law in 2010, the Legislature laid out specific new rules relating to how and when an order of child support can be modified. A thorough understanding of this new legislation and court practices relating to same can make all the difference in negotiating a fair settlement of child support, as well as litigating same where no resolution is possible.
Finally, even after there is agreement on matters relating to child support, or a court has made a determination regarding same after a hearing, enforcement of the resulting agreement or order is essential. The need for a modification to a child support agreement or order or to a maintenance award may occur, for example, where an individual has lost a job or there has been a change in income that affects their ability to pay. Alternatively, an increase in payment obligations can be obtained if the payor has had, for example, an increase in wages or a change in financial circumstances that make additional funds available.
New York law allows couples to enter into agreements before, during and after marriage. Prenuptial and post-nuptial agreements can protect property and establish spousal support in the event of a divorce. Whether you are entering marriage or you are facing a dispute involving a prenuptial agreement, you want to consult with an experience attorney who can protect your rights. At the time of divorce, agreements can resolve all issues, including property division, support and child custody. After divorce, when circumstances change, agreements may be needed to modify a divorce stipulation or trial decision.
Both parties should be represented by their own attorneys during the negotiation of a marital agreement. In additional, full disclosure of all assets is key in order to avoid problems down the road. Any prenuptial agreement must be presented and executed well in advance of a wedding to avoid the appearance of duress. A prenuptial agreement is most useful in determining property rights or addressing potential maintenance issues.,
At the time of divorce, if a prenuptial agreement or clause is in dispute. Ms. Jansen is prepared to effectively protect your rights. She has extensive experience in contract formation, breach of contract, and other issues that may arise under contract law, specifically pertaining to marital contracts.