Child custody can be an emotionally charged issue. The factors involved in determining custody are not based on clear cut mathematical equations as in child support. Therefor decisions about a child’s future post divorce are often emotionally based. The courts do provide certain guidelines to help resolve custody issues. A judge will primarily consider the best interests of the child in determining custody. Additionally, the circumstances of the case and parties involved will be examined.
Three primary factors are involved in determining custody, residency, legal guardianship and visitation. Legal custody (guardianship) allows one or both parents to make decisions regarding their children’s education, health care, religion and general welfare. Sole custody provides one parent the power to act on behalf of the children on an individual basis . Joint custody gives both parents equal decision making power. In many cases joint custody is a better option as it allows both parents to work together for their children’s benefit. However, even if joint custody is determined to be the best option, the child will, most likely, reside with only one parent. Physical custody defines the child’s residency. Sole physical custody involves situations in which the child lives with only one parent but has visitation with the other. A visitation schedule is agreed upon and is clearly set forth in the court order or separation agreement. In certain instances, joint physical custody, where the child resides with each parent for different parts of the year is considered. Residence in these cases does not necessarily have to be split on a fifty-fifty basis however a substantial amount of time must be spent in each parents home. Generally, joint physical custody is not considered to be in the best interests of the child. (more…)
It is not uncommon to feel despondent during and subsequent to a matrimonial action. Divorce will cause upheaval in your social, economic and personal life. Regardless of the reasons for terminating a marriage, leaving your spouse and moving towards an uncertain future as a single person can be frightening. Recognizing the effects of divorce on your emotional well being and taking steps to cope with them is imperative.
Conversations with a professional mental health care provider, such as a psychologist, psychiatrist or social worker, can be beneficial. A professional can be a comforting presence who will listen to your concerns objectively and help you cope with them effectively. Certain providers, particularly those with medical degrees such as psychiatrists, can even provide medication if necessary. You should feel extremely comfortable talking to whichever professional you choose. After all, you will be discussing your life in intimate detail. Friends and family are a wonderful resource for finding the appropriate help in this regard. Certainly, your physician can refer you to someone he trusts.
Children of divorce often have emotional concerns which they might not feel comfortable relating to their parents. Each parent may have different opinions about the divorce and the effect it is having on their offspring. An outside party who can discuss your child’s concerns can be helpful. A professional with expertise in child or adolescent care, whose sole concern is your offspring’s well being, will help alleviate feelings of distress and remorse over your divorce. (more…)
Both parents remain responsible for the support of their children subsequent to divorce. Generally, support ends when the children reach their majority at 21. However there are circumstances in which support can be terminated earlier. If, for example, a minor marries, enters the military or retains a full time job which enables him to support himself, his parents are no longer legally obligated to pay his bills.
Child support refers to an amount paid by the non custodial parent for the benefit of his children. Although both parents remain liable for their children’s support, it is implied that the custodial parent will use her own funds in addition to the support payments she is receiving from her ex spouse to cover these expenses. Payments are made to the custodial spouse or in a manner directed by the court or stipulated to in a separation agreement. The non custodial parent does not live with his children but remains responsible for their support. The custodial parent resides with her children and is also responsible for their maintenance.
Basic child support is determined by the court using a mathematical equation. In New York, the combined parental income is calculated and multiplied by the appropriate “child support percentage” , based on the number of children in the family. Income in this instance refers to gross income as reported on the most recent federal tax return. Social security as well as New York City and Yonkers income taxes are deducted in order to determine combined income. The “child support percentages” are as follows:
- 17% of combined parental income for one child
- 25% of combined parental income for two children
- 29% of combined parental income for three children
- 31% of combined parental income for four children
- No less than 35% of combined parental income for five or more children
- If there are five or more children in the family, the court must use its discretion in fixing the child support percentage
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Alimony, also known as maintenance or spusal support, refers to an amount of money provided to the lower income spouse for living purposes. Maintenance, unlike child support which is determined through mathematical equations, is a discretionary matter to be determined by the judge.
Many factors are considered in determining the amount, if any, of alimony. The duration of the marriage, the spouses’ age as well as their physical, mental and emotional states, present and future earning capacity and type of property involved are factors in determining a maintenance award. Additionally, the court will view other sources of income which are available to each spouse (such as interest and dividends), the conduct of the parties, the contributions made as a homemaker and the effect of the custodial parent’s role of homemaker on earning capacity.
There are tax implications involved with alimony. Maintenance payments are taxable as regular income to the recipient and are deductible for the payor. Alternatively, child support is not considered taxable income nor is it a deductible expense. It is, therefor, worth considering whether addditional child support might be a better option than alimony. Keep in mind however that where spousal support will generally terminate with the death of a party or remarriage of the recipient, child support ends when a minor reaches his majority.
Spousal support must be set forth in writing either through a separation or prenuptial agreement or divorce decree. A written agreement expresses the desires of the parties whereas a divorce decree sets forth the decision of a judge. Additionally, payments must be made in cash, not as services or goods, and will not be awarded while the parties share the same residence. (more…)
A divorce proceeding will result in the division of property acquired during a marriage. The distribution will be governed by the law of the state in which you reside. Community property states permit the distribution of marital property on a 50/50 basis. States which adopt the principles of equitable distribution allow for the consideration of many factors in determining the allocation of assets. New York is an equitable distribution state, meaning that marital property will be divided among the spouses but not always on a 50/50 basis.
The division of property is a separate issue from maintenance, and child support. However, since the financial situation of each spouse is considered for purposes of determining support and distribution awards the issues can be considered together for settlement and judgment purposes. If spouses can not come to an agreement as to how their assets will be divided pursuant to a settlement or prenuptial agreement, the judge will make the decision which will be set forth in an order.
Not all assets are subject to the provisions of equitable distribution. Marital property, to be considered for distributive purposes, refers to all assets acquired during the marriage and prior to a separation agreement or commencement of a divorce proceeding, by either or both spouses. Separate property is not subject to equitable distribution or division pursuant to the provisions of community property. Any asset acquired prior to the marriage, an inheritance or a gift from a party other than the spouse and compensation for personal injuries are separate property. Additionally, an increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse or property described as separate property by written agreement of the parties are not subject to division during a divorce. (more…)
