1. How is it determined who gets what share of the marital property?
a. In New York marital property is decided using the term equitable distribution. First, the parties or the court determines what is personal property and what is considered marital property and then said property is divided in an equitable, or fair, fashion.
2. My husband has said that he is going to take my children away from me. Can he do that?
a. In New York, the courts decide custody based on what is in the best interests of the child. In certain circumstances a law guardian is appointed to protect the rights of the child, or children. In certain situations the court orders a forensic evaluation where a mental health professional examines all parties and makes a recommendation to the court. In the end, either the two parties stipulate to an agreement or the courts make a decision regarding the custody of a child, or children.
3. If the living situation becomes unbearable in the home, is there anything that could be done to have my spouse removed from the home before the divorce is completed?
a. Yes. A party can ask for the court for exclusive use and occupancy of the marital residence. In situations where a party is in danger, they can petition the court for an order of protection based on a family offense petition.
4. I am no longer getting along with my spouse. Can I get a divorce even if my spouse wants to stay married?
a. In New York there are specific grounds for requesting the termination of the marriage and " not getting along" is not one of them. Some grounds include abandonment, constructive abandonment, cruel and inhuman treatment, adultery or incarceration of 3 or more years. Parties can enter in to a Separation Agreement and if said agreement is lived up to for more than a year, either party can move to have the agreement converted into a divorce.
5. What is a separation agreement?
a. A separation agreement is a contract between two married individuals which sets the guidelines as to how they will interact while living separately. The agreement may discuss issues such as custody, visitation, use of the marital residence, spousal maintenance and other issues between the parties.
6. The father of my child has always considered the child as his own but doesn't want to give me money now that we are living apart. What can I do?
a. The first step would be to go to Family Court and have the person declared a parent. Once that has occurred you have the right to bring a child support petition and have the person ordered to pay money in order to help with the costs associated with raising the child.
7. The father/mother of my child wants to have visitation but I am scared because they have serious problems. Can I do anything?
a. You do not have to allow visitation unless ordered to do so by a court. If the court believes there are problems then they should be addressed by the court so it can be determined just what type of visitation is appropriate.
8. If my husband or wife has had me arrested, is there any way for me to see my children?
a. Yes. Most orders of protection are subject to Family Court orders to the natural step would be to go to court and request a visitation order. Once that has been put in place you should be able to see your children as long as all outstanding court orders are being followed.
9. Can I get an order of protection against someone?
a. Yes. The two most common ways of obtaining an order of protection are:
i. Having them arrested and having the Court grant an order of
protection as one of the conditions of release.
ii. Going to family court and filing a Family Offense Petition
that allows for a temporary order of protection until the case
is heard by the court.
