Contested Divorce Attorney in New York, NY

Contested divorce attorneys in New York are necessary when there are issues that need to be resolved between the parents prior to divorce. Although most divorces in New York are uncontested, contested divorces appear when there are disputes regarding property division, child custody, child support, and spousal support.

Property Division in Contested Divorce

One of the most contested issues in divorce is the division of marital property. New York recognizes an equitable and not equal distribution of marital property.  Equitable distribution of marital assets mean that the property will be divided fairly depending on a number of factors.

Separate vs. Marital Property

In issues related to property division, a contested divorce attorney’s first objective is to determine which property is separate and which property is marital. In New York, unless there is a stipulation in a pre-nuptial agreement, anything owned by the spouses prior to marriage is separate, while anything acquired by the spouses after the marriage is marital. Inherited property, whether acquired before or during the marriage, is always considered separate property.

Transmutation of Separate Property into Marital Property

When separate property is used to purchase another thing, that thing is still considered separate property. Sometimes, however, separate property can become marital property by transmutation. For example, money in a separate bank account is transferred to the marital account for the purpose of making it a joint marital asset or property in a separate bank account was solely used to purchase a house in the name of the spouses. A good contested divorce attorney will be able to argue whether separate property was transmuted, making it into a marital asset, or simply commingled, retaining its separate property characteristic.

Equitable distribution of marital assets

Once marital assets have been identified, spouses can negotiate on how to divide marital property equitably and not equally. If the spouses cannot agree on equitable division of property, courts will intervene. An equitable distribution of marital assets means a fair division of marital assets based on the following factors:

• The income and property of each spouse
• The duration of the marriage, age and health of both spouses
• The need of the spouse who has custody of the children to live in the marital residence
• The loss of inheritance and pension rights due to divorce
• The loss of health insurance benefits due to divorce
• Any court award of support or maintenance
• Whether the marital property is easily convertible to cash
• Difficulty in valuing assets, i.e., business shares
• Tax consequences of divorce
• Wasteful dissipation of marital assets during divorce proceedings
• Hiding marital assets in contemplation of divorce

Military divorces will include additional issues of division of retirement pay and continuous availment of military benefits, especially when spouse have been married for more than 10 years.

Hiding marital assets

When a spouse with property to be protected contemplates divorce, the spouse might start to hide his marital assets. Hiding marital assets usually involves transferring assets to an irrevocable trust or to a third person without consideration in contemplation of divorce. This usually occurs in high net-worth divorces, where the other spouse has no control over the financial assets of the other nor has any idea what other properties the other spouse has. In case there is a dispute regarding the identification of marital assets, a contested divorce attorney may use discovery tools, such as interrogatories and depositions, to find out the spouse’s marital assets. An asset search company may also be utilized, especially in high net worth divorces.

Knowing your spouse’s financial assets will be key in determining how much a spouse can potentially receive in terms of child support and maintenance.

Child Custody and Support

Child custody is also a very contentious issue during divorce negotiations. One major reason is because the parent who has primary physical or residential custody over the child is the parent entitled to be paid child support obligations. Although the computation of child support is governed by regulations, parents can still discuss the division of child support, especially when residential custody is almost evenly split between the couple (i.e., one parent has the child for four days while the other parent has the child for three days).

Legal Custody vs. Residential Custody

Although courts will generally grant both parents joint legal custody, residential custody is usually given to the parent based on the best interests of the children.

Legal custody is the ability to make decisions for the child. For this reason, unless there are critical and severe reasons for awarding sole legal custody to just one parent (i.e., domestic violence, substance abuse, untreated mental illness), courts will generally give both parents the right to make joint decisions over the child’s welfare.

In determining residential custody, the court will always consider the best interests of the child. Residential custody refers to the living arrangements of the child and the custody a parent who the child will reside most of the time exercises.

When a contested divorce attorney negotiates child custody, the primordial consideration would always be the child’s best interests, depending on the following factors:

• Child care arrangements
• Home environment
• Parent’s finances
• Child’s preference
• Where the child’s siblings will live
• Mental health of the parents
• History of drug and alcohol abuse of either parent
• Parent who was primarily taking care of the children prior to the divorce
• Parent who will have possession over the family home after divorce

The parent who exercises primary residential custody will be entitled to the payment of the child support.

Child Support

Child support is the amount the parents pay to support a child. It includes food, housing, clothing, healthcare, education, childcare, and extracurricular activities. Child support always depends upon the financial capacity of the parents and the child’s lifestyle or standard of living.

The computation of child support is provided under New York Family Court Act §§ 413 and 413-a. Although parties may agree on the amount of child support, the regulations can provide a baseline for negotiation of child support between the contested divorce attorneys.

Under the guidelines, the combined parental income is determined using the parents’ income tax returns (subject to certain allowable deductions). The combined income is then multiplied by a certain percentage, depending on the number of children:

• 17% for one child
• 25% for two children
• 29% for three children
• 31% for four children
• 35% for five or more children

This results to the total child support that both parents should share. The total child support is then multiplied to the proportion of the individual income of the parent over the combined parental income to arrive at an individual parent’s child support obligation.

Example:

Husband annual income: $50K

Wife annual income: $30K

Total combined parental income: $80K

2 children: 25%

Total child support obligation between Husband and Wife: $80K x 25% = $20K annual

Individual parental child support obligations:

Husband: $20K x ($50K/$80K) = $12,500 annual or $1041.67 monthly

Wife: $20K x ($30K/80K) = $7,500 annual or $625 monthly

If Wife has primary residential custody, Husband should pay Y $1041.67 monthly. This amount can be negotiated, especially when Husband also has the children a few days a week.

Different computation may be used when the combined parental income is more than $154,000.

Spousal Support or Maintenance (Alimony)

Spousal support or maintenance is also an important contentious issue during divorce negotiations. Spousal support allows the spouse the flexibility to become independent from the other spouse without fear of not having food, clothing or shelter.

When Spousal Support is Paid

Spousal support may be given before, during, or after divorce proceedings. Parties may negotiate for spousal support prior to the filing of divorce during a trial separation. During divorce proceedings, the couple may also negotiate for the payment of spousal support, especially when one spouse does not have any form of income and has solely relied on the other spouse for support during the marriage. After divorce, spousal support may be given for a fixed period of time or for life.

Factors in Determining Spousal Support

In determining or negotiating spousal support, the following factors are considered:

• Whether the recipient is getting child support;
• Whether the payor’s income exceeds an income cap;
• The age and health of the parties
• The present or future earning capacity of the parties, including a history of limited participation in the workforce;
• The need of one party to incur education or training expenses;
• The termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which results in a maintenance award lower than it would have been had child support not been awarded;
• The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
• The existence and duration of pre-marital 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;
• The availability and cost of medical insurance for the parties;
• The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
• The tax consequences to each party;
• The standard of living of the parties established during the marriage;
• The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
• Any other factor which the court shall expressly find to be just and proper

Of the above, the most considered factors are whether the spouses have children, the length of the marriage, and the income disparity.

Period of Time of Payment of Spousal Support

• The period of time spousal support is paid depends on the duration of the marriage
• If you were married between 0-15 years, spousal maintenance is paid from 15% - 30% of the duration of the marriage
• For example, if you were married for 15 years, maintenance would be paid between 2.25 to 4.5 years
• If you were married between 15 to 20 years, spousal maintenance is paid from 30% to 40% of the duration of the marriage
• If you were married more than 20 years, spousal maintenance is paid from 35% to 50% of the duration of the marriage

Computation of Spousal Support

In computing spousal support, the formula depends on whether the recipient is getting child support and whether the payor’s income is higher than an income amount as capped by the guidelines. As of 2022, the income cap is $203,000. Any amount above the income cap is usually not mandatorily considered for purposes of computing spousal support and is subject to court discretion.

Spousal Support Without Children

In computing spousal support without children, the lower number from two computations is used.

First computation: 30% of higher-earning spouse’s income less 20% of the lower-earning spouse’s income

Second computation: 40% of combined income less lower-earning spouse’s income

For example:

Husband annual income: $50K

Wife annual income: $30K

First computation: 30% (50K) less 20% (30K) = $15K less $6K = $9K

Second computation: 40% (50K + 30K) = $32K less $30K = $2K

Spousal support: $2K annual or $166.67/month

Spousal Support With Child Support Payments

In computing spousal support with children, the formula is similar where the lower number from two computations is used.

First computation: 20% of higher earning spouse’s income less 25% of lower earning spouse’s income

Second computation: 40% of combined income less lower-earning spouse’s income

For example:

Husband annual income: $50K

Wife annual income: $30K

First computation: 20% (50K) less 25% (30K) = $10K less $7.5K = $2.5K

Second computation: 40% (50K + 30K) = $32K less $30K = $2K

Spousal support: $2K annual or $166.67/month

When a divorce is contested because of property division, child custody and support, and spousal support issues, negotiations can be a complex matter. Having an experienced contested divorce attorney can help you navigate the process smoothly, ensuring that your rights are protected. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].