FAQ2019-11-23T08:38:58-05:00

Family Law Frequently Asked Questions

General Questions

  • How can I find an attorney?

Whether you are planning to divorce, or your spouse initiated the divorce, and you need expert guidance during this difficult time, your choice of an attorney should be based on vast experience and a stellar track record. You want an attorney who will listen carefully to your concerns and act as your trusted advocate while helping you navigate the complexities of the divorce process.

If you live in and around New York City, Levoritz Law Firm is your local source for finding the help you need. We can pair you with a family lawyer who is well-versed in all facets of family law, including divorce, child support, child custody, spousal maintenance, and more. Get more of your questions answered by calling our office at (718) 942-4004.

  • Where can I find downloadable court forms?

The New York family court system maintains an online resource at NYCourts.Gov where you can find an entire library of links and information about the family court system. The purpose of the website is to keep the public informed. The site also includes a series of downloadable and printable forms, including petitions, notices, affidavits, and orders.

However, even though the forms include simple instructions, there’s still a chance you could get something wrong. Judges prefer to have correct forms when weighing cases. Not having your forms filled out correctly can get your divorce case unnecessarily delayed.

An experienced family law attorney can file petitions, motions, and orders on your behalf, ensuring all forms are filled out correctly for a more efficient divorce.

  • How much does it cost to file for divorce in family court?

An uncontested divorce can set you back at least $335 in filing fees and court costs. If your divorce is even slightly complicated, with children, assets, debt, and retirement accounts added to the mix, you would be better served by contacting an experienced family law attorney. A trained lawyer can help to speed up your divorce for minimum expenditures in both time and money.

  • What if you cannot afford to pay the filing fee?

The State of New York lets you ask the court for a “fee waiver” which is also known as “poor person’s relief” if you are a recipient of public benefits, classify as a low-income person, or you simply don’t have the funds to pay for your household’s basic needs and your court fees simultaneously.

You can find information about the waiver on NYCourts.Gov.

  • Do you need an attorney to file for divorce in New York?

Retaining a family lawyer is not required in the State of New York when filing an uncontested divorce. You can download the forms, pay the filing fees, and hope that everything turns out smoothly.

However, even uncontested divorces can get messy, and you may encounter obstacles you don’t have the knowledge to mitigate. This can lead to unnecessary delays that could otherwise be avoided.

An experienced family law attorney can answer your questions and file the necessary forms. Family law can be complicated, and a qualified attorney can help you make sense of all the rules and how they apply to your divorce case.

While an attorney isn’t required, speaking to a divorce lawyer is recommended when considering a divorce.

  • Is it possible to get a free attorney?

The New York City Bar offers free legal services for low-income New Yorkers who cannot afford a private attorney or who otherwise don’t have access to adequate representation. Check nycbar.org for details.

  • Where can one learn more about specific areas of family law?

The Levoritz Law Group is a trusted resource of information when you want to learn more about family law, divorce, child support, child custody, spousal maintenance, property division, and father’s rights. You can also visit our blog, where we offer insight and advice on all sorts of divorce-related topics.

  • How long will my divorce take?

That is a difficult question to answer. An uncontested divorce with no children will generally be faster from the filing of the divorce to completion than a contested divorce with loads of assets, debt, and retirement accounts to consider.

To get more insight into the specifics of your case and how long the process is likely to take, schedule a free consultation with one of our experienced family lawyers by calling (718) 571-9875.

  • How can I talk to the judge?

Judges are extremely busy with full dockets stretching months in advance. Generally speaking, it is not permissible to speak directly or write a letter to the judge presiding over your divorce case. If you need to convey a message to the judge, it is best to do so through your family attorney.

  • Can I get a new judge assigned to my divorce case?

Due to the heavy emotions involved in a divorce, it is common to feel that the Judge is taking one side over the other. If you feel the Judge is being impartial or there is wrongdoing of any kind, the best course of action is to bring the matter up to your divorce attorney.

However, changing judges during a divorce case can be difficult unless there is clear evidence that the Judge is not in a position to preside over your divorce case. It is possible to file a motion to request a new judge on your own. To be successful, your motion must detail all the reasons why the current judge should no longer preside over your divorce. It is possible that the judge will read your motion and voluntarily recuse him or herself from the case. If not, a request must be made to the court to get the judge to vacate the case. The court can remove the judge if they feel there is adequate proof. However, if the court doesn’t follow through, things could get uncomfortable in the courtroom.

Speak to your divorce attorney about your concerns with the judge to get the best advice as it pertains to your unique situation.

  • Where can I get a copy of my divorce documents?

You can obtain past divorce documents by visiting health.ny.gov. You must be one of the spouses involved in the divorce unless you have a New York State Court Order. You can obtain both divorce decrees and divorce certificates using a valid photo-ID or a utility bill with your address printed clearly on the label. There are fees involved and the system tends to get backed up, so there may be expenses and delays involved. You can show up in person by visiting the New York State Department of Health Vital Records Certification Unit located at 800 North Pearl Street, 2nd Floor Room 200 in Menands, New York, 12204 between 10 am and 2 pm Monday through Friday or you can call 1-8-877-854-4481.

  • How can I find out the date of my divorce hearing?

You can learn the date of your divorce in New York City by visiting NYCourts.gov and finding your county and jurisdiction. That will allow you to call the court directly to inquire about your specific court date.

  • How do I change a court date?

Courts have dockets that stay full throughout the year. That means that getting a later court date may not be possible. You can file a continuance with the court. A continuance would be necessary if you feel you don’t have enough time to prepare for your hearing or if you won’t be able to meet a specific deadline by that time.

To file a continuance in the state of New York, you must have been served with a motion in a divorce case and, you will need to ask the court to reschedule the hearing.

For the continuance to be successful, you will need to file a motion with the court and serve the other party in your divorce case. The motion must explain why you need the continuance and should include “good cause” which is a very good reason for not being able to show up prepared by the pre-scheduled hearing date.

Trying to file a continuance motion on your own can be complicated. We recommend speaking with a qualified divorce attorney who can take the necessary steps to file a motion for continuance on your behalf.

  • Can I reopen a dismissed divorce case?

It is possible to reopen a closed divorce case in some cases. In the state of New York, you have one year from the date of the dismissal to file a motion to vacate the dismissal. You will need to demonstrate good cause for reopening the case, so it might be better to start anew.

It might be best to speak to an experienced divorce lawyer who can advise you on whether to reopen your closed case or to start a new petition for divorce entirely.

Questions About Divorce

  • I am getting divorced. Do I need a divorce lawyer?

You can file for a divorce on your own in the state of New York. You can download the forms off the NYCourts.gov website, pay the required fees, and attend the hearing when the judge is ready to see your case.

However, divorce cases can get complicated, even uncontested divorces. For that reason, we recommend speaking with a family attorney who is well-versed in things like how to file for divorce, how to get what you want out of the divorce, and how to ease stress while your divorce is ongoing. You deserve a trusted advocate guiding you through the divorce process, and one who prioritizes your best interests. Call Levoritz Law Firm to schedule a free consultation.

  • What legal grounds are valid for obtaining a divorce?

In 2010, New York became the last state to allow no-fault divorce. In the past, stating fault in a divorce tended to complicate things, leading to longer times in court and heftier expenses. Filing a no-fault divorce saves time and money because nobody has to prove fault. This makes getting a divorce easier and less costly for both parties.

  • Who determines how assets are divided in a divorce? How is property divided?

In an uncontested divorce, you and your spouse are free to decide who gets what upon your divorce. Division of property doesn’t just mean money and cars. You and your spouse should also think about splitting debt and any retirement accounts you two share.

If the divorce is contested, both you and your spouse have a right to one another’s financial histories. The process of providing your spouse’s attorneys with all financial records stating back to the date of your marriage, and vice versa, is called “discovery.”

The discovery process allows for both you and your spouse to submit to the other side a list of “interrogatories.” This is a list that has been drafted by the family lawyers and that contains questions that must be answered under oath. Many interrogatories are related to finances, pensions, assets, and other financial issues.

You and your spouse can also work through your attorneys to force the other to produce bank statements, tax returns, credit card bills, paycheck stubs, and other important documents. It is also possible for your divorce attorney to subpoena third parties to acquire the information you need.

Once an accurate picture of all assets, debts, and investments are uncovered, the process of dividing those items begins. In New York, spouses will generally split half of all assets, debts, and retirement accounts down the middle. Your case may be different, however, depending on how long you have been married and other important factors.

Speak with a qualified attorney to get your questions answered about the division of property in your New York divorce case by calling The Levoritz Law Group in New York City.

  • My spouse cheated, spent time in jail, and has a drug problem. It should be easy to win my divorce case because my spouse did so many awful things, right?

Not necessarily. Divorces can be complicated. Without adequate proof of wrongdoing, your accusations may not hold up in court. Also, New York is a no-fault divorce state.

If you have proof of domestic violence or that your children are in harm’s way, gather all the proof you have and submit them to the court.

To increase your chances of obtaining the outcome you want in your divorce case, speak with an experienced divorce attorney. A lawyer familiar with the complexities of New York family law can answer your questions confidently while guiding you to a favorable resolution.

If steps need to be taken to protect you or your children from harm, your attorney can file rapid motions to obtain a restraining order so that you can get your family to safety as you file the divorce petition.

Speak with a qualified family law attorney by calling The Levoritz Law Group in New York City to get the answers you seek related to your spouse’s wrongdoing in your divorce case.

  • I want to divorce my spouse, but he refuses to sign the paperwork. Am I stuck?

You can get your spouse to comply with a divorce by working with one of our experienced divorce attorneys. Your attorney can file a petition for divorce on your behalf. Your spouse will then be served with the divorce paperwork. If your spouse signs the papers and all is well, that is considered an uncontested divorce, where the process for resolving conflicts is usually much simpler.

If your spouse refuses to sign, your attorney can ask the court to grant the case in your favor after a statutory time period, which is generally around thirty-days. After that time, it is likely that the court will award you whatever relief you asked for in your petition.

Your lawyer can take the proper steps to put your divorce in motion. When that happens, your spouse will eventually be forced by the court to comply.

  • I’m married and don’t want a divorce, but I do want custody and child support orders. Is that kind of agreement possible?

Unfortunately, no. Judges only get involved with child custody and support cases when a couple initiates a divorce.

  • All our assets are in my spouse’s name.  Does that mean that my spouse gets to keep everything in the divorce?

Not necessarily. New York family courts promote fairness for both spouses. Unlike community property states like California and Arizona, New York follows the equitable distribution model. This means that all assets, debts, and retirement accounts will be calculated and divided equitably, or fairly.

When a judge sets about dividing a couple’s marital assets, he or she will consider the ages of each spouse, the length of the marriage, each spouse’s assets and income, and other important factors.

If you have property you would like to keep separate, or you simply want to ensure a fair outcome in your divorce case, contact an experienced family attorney by calling The Levoritz Law Group in New York City.

  • How will our retirement accounts and pensions be divided in our divorce?

Retirement accounts and pensions are divided as part of asset division in a divorce case. Since New York follows the equitable model for dividing assets, the judge will take special considerations into account before dividing the assets fairly.

To ensure you get the best possible outcome regarding your retirement accounts and pension, contact The Levoritz Law Group in New York City to schedule a free consultation.

  • How long do we have to be married to receive alimony (spousal support)? How much can I get?

In the state of New York, spousal support, otherwise referred to as spousal maintenance, can be awarded in one of three ways: temporary, rehabilitative, or permanent.

Temporary maintenance (alimony pendente lite) requires one spouse to pay the other during the divorce process. The payments end when the judge issues the final order of divorce or creates a new, more permanent award.

Rehabilitative maintenance is common following a divorce, particularly if the spousal job skills and incomes vary widely. The court grants rehabilitative alimony in cases where one spouse doesn’t have the necessary education and job skills to enter the workforce and support a single-parent home. Rehabilitative spousal support is temporary in nature and common when one parent stepped out of the workforce for some time to raise a family.

Permanent support involves payments from one spouse to the other after the divorce is finalized.

Whether you receive one of these types of support depends on the specifics of your divorce case. Courts will generally reserve permanent support for long marriages and marriages where one spouse has much greater income or where one spouse is in poor health or unable to become self-sufficient.

As far as how much you will be granted in support, judges use a sophisticated formula for calculating spousal support amounts. The formula takes into account each spouse’s income and whether the paying spouse will also be paying child support.

New York places a limit on a paying spouse’s income at $184,000 when calculating spousal support, which means that the court will not include additional income for the calculation of support unless the judge finds good cause. The judge will consider the age and health of both spouses, their present and future earning capacity, and any accompanying child support payments. Other considerations include the couple’s standard of living, the length of the marriage, and any other factors the judge may deem important.

Speak to a qualified divorce attorney to ask about spousal support and the amounts you are likely to pay by calling The Levoritz Law Group in New York City.

  • My ex is ignoring the terms of our Decree of Divorce.  What options do I have?

The divorce decree is a legal document, and so your spouse is responsible for the terms listed on that document. Your divorce lawyer may have to file a motion with the court to reopen your divorce to modify some agreements, such as those relating to child visitation. If your ex’s inaction is related to child support, New York’s Support Collection Unit or SCU is the agency that closely monitors the provisions of child support as mandated by the state’s divorce decrees.

The SCU doesn’t need the court’s permission to enforce the collection of child support. Enforcement measures can include seizing tax funds and freezing bank accounts. Each occurrence of non-payment will also be reported to the credit bureaus. If the child support non-compliance becomes serious, your family attorney can petition the court to intervene, leading to further court-ordered enforcement, such as money judgments and possible jail time.

Questions About Child Custody & Paternity

  • What does family law say about “legal custody” and “physical custody?”

Custody in New York is described as legal or physical.

Joint legal custody is a situation where the parents must consult and agree on all major child-rearing decisions, such as medical, school, extracurricular activities, and religion. Sole legal custody gives one parent the sole decision-making authority on all important matters.

Joint physical custody, which is also sometimes called shared physical custody, describes a situation where each parent splits time and responsibilities with the children on a 50/50 basis.

A parent that has more than 50% of the custodial time with the child is said to have primary physical custody of the child. This designation gives the parent certain decision-making authority in the absence of an agreement, and some nice tax credits to boot.

Sole physical custody is where one parent has physical custody of the child the majority of the time and the other parent has either no time with the child or limited access to the child.

  • How do courts determine who gets custody of children in a divorce?

Family courts in the state of New York will always make decisions based on what is best for the child. In other words, the court will not take sides based on gender or income level. Instead, both parents can petition the court for custody.

You could share custody with the other parent. However, if the other parent is disputing the custody agreement you have in mind, you have better odds of getting custody in your favor by speaking with a qualified divorce attorney. Contact our office to learn more.

  • What is joint custody?

Joint custody is where both parents have the right to decide major issues for the child. The term “joint custody” is short for joint legal custody.

  • How do I establish “father’s rights?”

Father’s rights are just as important as the mother’s rights. In the past, fathers were passed over by family courts in favor of the mothers, as it was assumed that children are better off with their mothers during their tender years.

Though the laws have changed, unfortunately, some judges still operate under certain biases that disadvantage fathers.

To protect your rights, you deserve a trusted advocate who has experience with fathers’ rights issues to represent you in court. Contact the Levoritz Law Group to learn more.

  • I took a DNA test that proves I’m not the child’s father.  Can I get my name off of the birth certificate and/or stop child support?

Unfortunately, once you sign an Acknowledgement of Paternity, it is difficult to remove your name from the birth certificate and stop child support enforcement. Also, the court will not accept a home DNA test, even if the results come from an accredited lab.

Your best bet is to speak to a qualified family law attorney. Your attorney can get the court to order a DNA test to establish paternity. However, you should know that, unless the biological father is identified, the court may ignore the results of a court-ordered test so that the child gets the proper care he or she needs.

To get answers to your pressing questions regarding paternity in the state of New York, contact our office and speak to an experienced family law attorney.

  • We were never married and had a child. Does that mean the mother has sole custody and the father has no rights?

New York family courts always act in the child’s best interests, and children need both a mother and a father. Even if the parents never married, both mother and father have rights and responsibilities related to the child’s upbringing.

If you are a father in this situation, you can petition the court for custody. If you suspect the mother is unfit, it is possible to petition the court for primary custody. Joint custody is another agreement that will benefit the child and allow both mother and father to have equal visitation.

Speak to a qualified attorney to learn about your parental rights by calling our office in New York City.

  • We have a child together but live in different states. Which state should I file for custody?

When the mother and father of a child live in separate states, there could be complications if both parents file in their home states. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) prevents two states from handling the same custody case at the same time. This is because both cases could result in conflicting rulings.

Generally speaking, the court where the child has lived for the past six months will be in charge of handling the custody arrangement. While it is possible to share legal custody of a child, sharing physical custody is a bit more challenging, particularly if the child is of school age.

Depending on the distance between the parents, the judge may award frequent visits even if you live a state away from your child, as the court always does what’s in the child’s best interests.

  • How do family law judges decide who will get custody of the children?

Judges rule based on what is best for the child. Ideally, both parents will share legal custody, which involves all important decision making, while sharing physical custody as well. However, while joint legal custody is commonplace, most courts will deem one parent the custodial parent and the other parent the non-custodial parent with visitation rights.

You are more likely to get the custody arrangement you want by speaking to a qualified family law attorney.

  • Do children get to decide which parent to live with?

Family law judges will take a children’s wishes into consideration but may not act on them. Judges always want what’s best for the child, even if the ruling goes against what the child wants.

  • My child wants to speak with the judge. Can I bring my child to divorce court? Can my child write a letter to the judge?

It is not advisable to bring your child to family court, and judges do not customarily listen to children directly. The child can convey their thoughts to a court representative who can then convey that message to the judge. Your child can also write a letter to the judge, but it is best to pass the message through your family attorney. Your attorney can ensure your child’s thoughts and ideas are conveyed adequately to the judge during your divorce hearing.

  • I want to take my child and move away. What should I do?

If you have physical custody of your child and wish to move so far away that the other parent’s visitation is affected, you must obtain permission from the other parent to move, or you must petition the court before moving.

You can request permission to relocate with the child by filing a custody modification petition in court.

  • The court issued a custody order, but my ex won’t follow the required visitation schedule. How can I see my child?

If your ex will not return your child in accordance with your visitation schedule, you should contact the police for assistance. You can also file a violation petition with the court. The courts react harshly to parents who don’t uphold their responsibilities to their children. Speak to one of our experienced divorce attorneys who can guide you through the proper steps to getting your spouse to comply with visitation.

  • Can I change the custody or visitation order?

You can file a custody modification petition in Family Court. Contact one of our experienced divorce attorneys to assist you.

  • Who can claim our child as a dependent on their taxes?

The custodial parent is generally the one who gets to claim the child as a dependent. However, the non-custodial parent can claim the child on his or her taxes if the custodial parent agrees and signs IRS Form 8832.

  • Can my ex prevent me from seeing my children?

No. Family Courts want both parents involved with their children. That means that you are entitled to frequent and meaningful visitation. If your spouse won’t let you see your child, and you have an active visitation agreement, you are encouraged to contact the police to assist you.

  • Do grandparents have visitation rights to their children?

Grandparents have a right to request court-ordered visitation under certain circumstances, such as when one or both parents die. Other examples include if the grandparents have already established an existing relationship with their grandchildren and if the parents have interfered with their efforts to maintain a relationship.

Questions About Child Support

  • How is the child support determined in a divorce or child support case?

Under New York State law, both the custodial and non-custodial parents must contribute financially to their children’s care.  Child support also includes providing health insurance coverage for the child until the child turns 21.

Family court uses a sophisticated formula for calculating child support. The amounts are factored considering the number of children the two of you share, both spouses’ income levels, and special circumstances, like whether paying child support would send the non-custodial parent below the poverty level or unable to care for the children. In those cases, the judge will make adjustments.

  • If I have joint custody, does that mean I won’t have to pay child support?

Not necessarily. Even with a 50/50 joint custody agreement, the judge will usually treat the lower-earning parent as the custodial parent and will require the higher-earning parent to pay child support.

  • I’m not sure how much income my ex earns each month.  How do I know how much child support to ask for?

Your ex will not be able to hide assets or finances from the court. During the discovery process, both sides’ attorneys will trade information relating to all assets, finances, debts, investments, and retirement accounts. The judge will then make a determination based on those findings and other factors used to calculate child support amounts. Judges rule based on what they feel is a fair amount for the child’s well-being.

  • I suspect my ex is lying about how much money he makes!  How do I prove this in court?

Your ex’s income and debts will all come out during the discovery process of your divorce case. Hiding income from the court is not possible, especially these days since everything is tracked electronically.

  • Can I get awarded back child support?

Retroactive child support is generally ordered by judges at the time the divorce begins to help the custodial parent cover general living costs while the divorce is pending. Backdating child support to the time of the child’s birth is uncommon. However, if the mother was receiving social services, the New York County Department of Social Services may bring a claim against the non-custodial parent for retroactive child support to the date the child also became eligible for social services.

  • I just bought our child clothes, a toy, and a new computer. Do these expenses count as child support?

No. Unless the items mentioned were part of that decree, the child support payments must be paid in full.

  • I pay the health insurance premiums for our kids through the health insurance program offered at work. Can I deduct the costs of those premiums from my child support payment?

The only way to get your child support payments changed is to request a modification in Family Court. Otherwise, your child support payments must be paid in full.

  • My ex won’t pay child support.  How do I collect?

The New York Child Support Enforcement program has ways of getting your ex to pay child support and get the children covered by medical insurance. A notice will be sent to your ex explaining the collection procedures and the consequences of non-payment. If your ex still doesn’t pay, the child support enforcement agency can garnish wages, intercept unemployment insurance benefits, and intercept lottery winnings, for instance. Any late payments to child support will also be reported to the credit bureaus, negatively affecting your ex’s credit score.

  • I can’t afford to pay the court-ordered child support. What can I do?

Not paying your child support is the last thing you should do. If you cannot pay the mandated amount of child support, your best course of action is to petition the court for a modification of child support. You should do this sooner rather than later, because late payments and late fees may already be adding up.

  • How long does child support last?

Child support lasts until the child turns 21 years of age or becomes emancipated by entering the military or getting married.

  • Are both parents responsible for paying for a child’s college expenses?

Both parents are legally obligated to support their children financially. A judge will usually require parents to cover all reasonable expenses, which can include college tuition.

  • What happens if one parent does not pay court-ordered child support?

Like most states, New York takes a hard stance with child support enforcement. The New York child support enforcement program will send notice to the other parent that enforcement has begun before serious collection attempts are made. The agency can garnish wages and intercept lottery winnings, tax refunds, and disability payments.

  • If my ex stops paying child support, can I stop him/her from seeing the kids?

No. Parents have a right to frequent and meaningful visitation with their children. If your spouse stops paying child support, the credit bureaus will be notified, and late fees will continue to mount. If your ex gets into serious arrears with child support, more severe enforcement methods can be taken, which can include the loss of professional licenses and jail time.

  • If my ex won’t let me see the kids, can I stop paying child support?

No. You are required to pay child support until your child turns 21 years of age or becomes emancipated. If your ex won’t let you see the kids and you have a court-ordered visitation agreement, contact the police, as your ex is in violation of kidnapping. You can also petition the court to take action against your ex for non-compliance of the terms listed in the divorce decree. Contact one of our qualified divorce attorneys to learn more.

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