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 Equitable
Distribution of Property -New York has the philosophy that
a marriage, especially a long term one, is a partnership. Both marital
assets and debts will be shared equitably, though not necessarily
evenly. This means that a spouse who has been at home with the children
is seen as contributing equally to the financial success of the
partnership as one who has worked outside. Assets are either "marital"
or "separate". Marital property is everything acquired during the
marriage except inheritance, gifts from third persons, personal
injury awards and property obtained after the divorce began. It
is irrelevant who holds title to the property since all assets acquired
during the marriage are partnership property. Even separate assets
may be marital if they were commingled with marital assets or if
the separate property owner "worked" on that asset during the marriage
(the asset "actively" appreciated as opposed to assets which "passively"
appreciate).
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Spousal
Support (Maintenance) - Spousal maintenance
(alimony) may or may not be awarded and may be permanent or limited
and awarded to either party based upon a number of factors including
the prior standard of living of the parties, earning capacity; and
ability to become self-supporting. The parties may waive the right
to spousal maintenance.
Immediate
Need -Divorce does not always go as smoothly
as one would like them to. Emotions frequently eclipse rational thought
and both husbands and wives act in a manner that requires immediate
Court involvement to address problems that cannot wait for the ultimate
end to the divorce proceeding. An application can be made to the Court
at virtually any point in the divorce for pendente lite relief (relief
granted during the pendency of the divorce) although frequently this
is the first thing your lawyer must do for you. The purpose of a pendente
lite Order is to maintain, to the extent possible, the status quo
(life as it existed before the divorce was started) and to give order
to the lives of the parties, while the divorce proceedings continue.
Among the things you can request of the Court, pendente lite, is: |
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 Child
support - Sometimes the anger of the moment
results in a termination of support for the children. The Court will
act to restore appropriate support immediately.
Spousal
support (alimony or maintenance) - As with
child support, the Court will decide need based upon a number of factors
and will order payment accordingly
Payment
of carrying charges- Although clearly intertwined
with both child and spousal support, the Court may require payment
of some or all of the carrying charges on a marital residence on the
marital home or other properties
Restraints-
The Court realizes how important it is to
preserve assets to be distributed at the end of a divorce. Upon a
reasonable showing the Court will place restraints on the transfer
of property or the sale of assets. Providing banks, brokerages, etc.
with copies of the Court's Order is generally a good idea just in
case the spouse against whom the restraints have been placed doesn't
feel they have to honor the Court's Order
Custody-
For a number of reasons it may be necessary
to have the Court make a temporary decision on the custody of minor
children. Ultimate decisions usually involve having a law guardian
(attorney) appointed for the children and, possibly, a forensic (psychological
or psychiatric) evaluation performed. The best interests of the children
will guide all Court actions.
Visitation-
Frequently, just as the non-custodial parent
uses money (child support) as a weapon the parent with the child withholds
visitation to punish or hurt the other, the custodial parent will
withhold the children. The Court will act swiftly to avoid damage
to the relationship between parent and child. If warranted, restraints
involving location or supervision can be placed upon all visitation.
Exclusive
Occupancy - Sometimes things can get so
out of hand that it doesn't make sense for the parties to continue
to reside together during the divorce. The Court can give one spouse
the right to live in the parties' home and remove the other spouse,
by force if necessary
Orders
of Protection - (NOTE: Although
authorized to issue such Orders, the Supreme Court generally has chosen
too leave this relief to the Family Court and Courts with criminal
jurisdiction. Orders of Protection can require a spouse to stay away
entirely from a spouse and/or children or merely require them to refrain
from defined negative conduct directed towards them. |
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