If your spouse will not agree or has to be served with the divorce papers, you MUST adhere to the CSSA guidelines. In addition, if you and your spouse cannot come to a written agreement about child support, ALL child support MUST be paid through the NYS Child Support Collection Unit. It is possible to deviate from the CSSA guidelines if you and your spouse cannot agree or your spouse has to be served, but Premier Paralegal cannot assist you with this process.
You MUST provide a copy of the Family Court Order to the judge to finalize your divorce. Unless you and your spouse agree in a stipulation that you want this amount changed in the divorce proceedings, the divorce judge will be asked to order that the existing child support order be continued. Premier Paralegal can only help you to continue that order. Premier Paralegal CANNOT help you modify an existing Family Court Order for child support.
The parent with physical custody of the child is entitled to request child support from the other parent. The court will order child support based on statewide guidelines (“Child Support Standards Act” or “CSSA”) unless the guidelines are waived and the amount of child support is agreed between the parties. The guidelines determine the amount of child support based on the income of the parties and the number of children.
Child support in New York State must be paid until the child(ren) are twenty-one years of age (twenty-two years of age if a child is attending college), the death of a child, the marriage of a child, or the emancipation of a child. Children are generally considered emancipated if they are on active military duty, when they marry, live away from the parents or are in full-time employment. If the child is under 21, the court may require general information about the child, including where the child works, and a statement from the child stating that the child is self-sufficient, and not in need of support from the parents.
The CSSA states generally that the parent WITHOUT physical custody of the child must pay child support to the parent WITH physical custody.* typically, the percentages that the parent WITHOUT physical custody (the non-custodial parent) must pay as and for child support is:
1 Child: 17% of the non-custodial parents Adjusted Gross Income.
2 Children 25% of the non-custodial parents Adjusted Gross Income.
3 Children 29% of the non-custodial parents Adjusted Gross Income.
4 Children 31% of the non-custodial parents Adjusted Gross Income.
5 Children 35% of the non-custodial parents Adjusted Gross Income.
The above percentages are taken from the non-custodial parent’s ADJUSTED GROSS INCOME. The ADJUSTED GROSS INCOME is calculated as follows:
YOUR GROSS INCOME (-) MINUS Social Security Tax withheld, (-) MINUS Medicare Tax Withheld, (-) MINUS Local Tax (e.g. NYC) Withheld, (-) MINUS court-ordered child support payments paid to third party = YOUR ADJUSTED GROSS INCOME.**
*In cases where the parents agree to Joint Physical Custody, the Courts generally treat the parent with the higher income as the non-custodial party, and Premier Paralegal will prepare your paperwork accordingly.
**If the non-custodial parent’s adjusted gross income is LESS THAN $13,099.00 per year, then the CSSA mandates that the child support owed by the non-custodial parent is $25.00 per month. See the current CSSA chart for exact amounts because these numbers can change from year to year.
Separate property is generally property which either party brings into the marriage, is acquired during the marriage with separate funds, or received by inheritance, gift or as the proceeds of a personal injury lawsuit.
Marital property is property owned jointly by husband and wife, each having a fair (“equitable”) interest in the property by reason of the marriage. The division of marital property at the time of divorce is referred to as “equitable distribution.” This commonly includes property such as the marital residence, bank accounts, and retirement plans.
Marital property is generally anything (including debts) acquired by either party during the marriage that is not defined as separate property; any earnings of either party during the marriage (including but not limited to accumulated vacation pay, pension funds, equity in insurance policies, tax refunds, etc.).
Marital property includes anything earned or acquired by either spouse during the marriage that is not separate property. This includes wages earned by either spouse, increased value of pensions, and debts incurred by either spouse during the marriage.
New York’s Domestic Relations Law requires “equitable distribution” of the couple’s marital property at the time of divorce. This means that the assets and debts of the marriage are divided in a way that is fair, but not necessary equal.
Only marital property needs to be divided, since separate property already belongs to one spouse or the other. However, in a separation agreement or stipulation settling the divorce, you should list any items you want to have clearly understood as separate to prevent disagreement in the future.
In an uncontested divorce, if there is marital property that needs to be divided, it must be divided in writing in the form of a Stipulation of Settlement. If you and your spouse cannot come to a written agreement about the marital property, the court may consider your case contested, or the court may order a hearing (inquest) so you and your spouse can bring proof of and testify regarding your marital property.
You are responsible for all marital debts incurred by either spouse between the date of the marriage and the date you file for divorce. Debts from before marriage or after the date you file for divorce are separate property (and responsibility) of whoever incurred them.
Even if you are separated from your spouse, you may be responsible after separation for accounts that are in both of your names or in the name of either spouse with businesses that are accustomed to dealing with you as a couple and have not been notified that you are separated and want your name removed from the account.
It is a good idea to give these creditors notice in writing of your separation/filing for divorce.
You will always be liable for any debt for which you were originally liable when it was incurred. If your spouse is ordered by the court to pay a specific debt and your spouse fails to pay it, the creditor can demand payment from you, or repossess any marital property that secured the debt.
Step 1: Index Number is purchased and Summons with Notice is filed. This starts the process.
Step 2: Spouse is served in person by a process server with a copy of the filed Summons with Notice, and other necessary documents (Affidavit of Defendant, Sworn Statement of Removal of Barriers to Religious Marriage, Child Support Standards Chart). Your spouse must be served within 120 days, or the summons will expire and you will have to re-file, requiring the repayment of filing fees.
Step 3: Assuming there is no response from your spouse (“Notice of Appearance”), you will sign the Verified Complaint and other documents and the “final” uncontested divorce papers can be filed with the court no sooner than 41 days after your spouse was served (the mandatory waiting period in default cases).
Step 4: About 8-10 weeks after the final papers are filed at the courthouse, the judge will sign your papers to finalize your divorce.
Step 5: Within 1-2 weeks of the signing, you will be notified by postcard that the judgment of divorce has been signed and is available to be picked up from the County Clerk. You are required to give a copy of the divorce judgment to your spouse, and proof of service by mail of the judgment of divorce has to be filed with the court.
If your case is uncontested, then your case should proceed generally as follows:
Step 1: Index Number is purchased and Summons with Notice is filed. This starts the process of obtaining a divorce.
Step 2: Spouse is given a copy of the filed Summons with Notice, and other necessary documents (Stipulation of Settlement, Affidavit of Defendant, Sworn Statement of Removal of Barriers to Religious Marriage, Child Support Standards Chart).
Step 3: Your spouse must sign within 120 days, or the summons will expire. You will have to re-file, requiring payment of court filing fees again.
Step 4: After your spouse signs the Defendant’s Affidavit before a notary public, you will sign the Verified Complaint and other documents and the “final” uncontested divorce papers can be filed with the court. (There is no mandatory waiting period here because it is waived in the Defendant’s Affidavit.)
Step 5: About 8-10 weeks after the final papers are filed at the courthouse, the judge will sign your papers to finalize your divorce.
Step 6: Within 1-2 weeks of the signing, you will be notified by postcard that the judgment of divorce has been signed and is available to be picked up from the County Clerk. You are required to give a copy of the divorce judgment to your spouse, and proof of service by mail of the judgment of divorce has to be filed with the court.
If you and your spouse can’t agree, and your spouse won’t sign all necessary papers, the following problems and issues may arise which can make your divorce more difficult and take more time:
Marital Property: All marital assets and debts (property obtained by either party during
the marriage) must be divided by written agreement (Separation Agreement or Stipulation of Settlement). If you and your spouse cannot agree in writing on how the property is to be divided, the court will either order an inquest (hearing) for you and your spouse to appear in front of the judge and testify regarding the marital property, or the court will consider the case “contested” and the judge will not sign a judgment of divorce until the property issue has been resolved, either by written settlement agreement or after trial.
Child Support: If you and your spouse are unable to agree in writing on the issue of child support, the court will generally order child support to be paid pursuant to the CSSA guidelines (see “How Do We Determine the Amount of Child Support? below) via an Income Deduction Order (i.e. garnished from the payer’s paycheck), payable through the NYS Support Collection Unit (“SCU”.) If the court does not have sufficient information to determine the proper CSSA guidelines amount, an inquest will be ordered and the parties will have to appear in court to produce documents and testify on the issue of their income and child support obligations.
Delays: If your spouse refuses to acknowledge service of the summons and consent to the divorce by signing the “Defendant’s Affidavit,” then in-hand personal service is required. This causes the additional delay and expense of employing a process server, as well as a mandatory 40-day “waiting period” before the court will process your uncontested divorce papers. This can lead to delays of several weeks, or even months if your spouse is difficult to serve.
Failure of No-Fault Divorce: No judgment of divorce can be granted under a no-fault divorce unless and until ALL 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.
Temporary Maintenance & Post Divorce Maintenance: If you and your spouse are unable to agree in writing on the issues of Temporary Maintenance and Post Divorce Maintenance and your case becomes contested, the court can order Temporary Maintenance to be paid.
Calculation (1): 30% of the payor’s income minus 20% of the payee’s income,
Calculation (2): 40% of the combined income of the two spouses. The payee’s income is then subtracted from this figure.
The sum of this calculation is the Presumptive award. The court must select the lesser of these two figures as the temporary maintenance guideline amount.
The court must order the presumptive award of temporary maintenance, unless the court finds that the presumptive award is unjust or inappropriate.
See Domestic Relations Law § 236 [B][5-a][e].
If the court does not have sufficient information to determine the proper Maintenance guidelines amount, an inquest may be ordered and the parties may have to appear in court to produce documents and testify on the issue of their income and child support obligations.
Custody & Visitation: If your spouse won’t sign our documents, the court will usually order ‘reasonable visitation’ to the non-custodial parent. We’ve seen people try to unsuccessfully get the court to impose a visitation schedule in cases where the other party wouldn’t sign. The judge will usually direct that the non-custodial party shall receive ‘reasonable visitation’. If you don’t want that to happen, you need to consult with an attorney to help you finish your divorce case.
If you are the victim of domestic violence or child abuse has happened, Premier Paralegal recommends you consult with an attorney prior to using our services. Also, Premier Paralegal recommends you take your issues to Family Court in your County to obtain custody, visitation, and child support orders prior to utilizing our services. Once you have orders from the Family Court, Premier Paralegal can help you incorporate those orders into your final divorce judgment.
To obtain a divorce on the ground of cruel and inhuman treatment, the spouse seeking a divorce must provide details, including dates and locations, of specific incidents of cruelty towards the spouse carried out by the other spouse.
All incidents described must have happened in the five years immediately before the divorce is started. To constitute cruel and inhuman treatment under the law, the spouse’s behavior must have so endangered the mental and physical well-being of the spouse seeking the divorce as to render it unsafe and improper for the parties to live together as husband and wife.
Physical, verbal, sexual or emotional behavior may be included. The behavior must have occurred while the parties were still living together.
When using this ground in your divorce papers, you should list at least three incidents of cruelty, including DATE, and LOCATION of where they happened and details of what your spouse did to you. Bad things your spouse did to other people (such as your mother or your children) do not count. The longer the marriage, the more serious the cruelty grounds have to be for the courts to consider them grounds for divorce.
Bear in mind that even though divorce papers are generally confidential, people are usually resistant to agreeing to a divorce alleging cruelty. If you want your divorce to stay amicable, it is generally a good idea to choose a less inflammatory ground for divorce if any other ground is available to you.