What is a wife entitled to in a divorce in New York

What is a wife entitled to in a divorce in New York?

When a marriage ends in divorce in New York, there are several issues that must be addressed regarding the division of assets and responsibilities between spouses. A wife going through a divorce in New York may be entitled to a portion of marital property, spousal maintenance (alimony), child custody, and child support. The specifics depend greatly on the circumstances of each case.

Marital Property Division

New York is an “equitable distribution” state when it comes to dividing marital assets in a divorce. This means that marital property does not need to be divided equally or 50/50 between the spouses, but it must be divided equitably or fairly, based on the circumstances of the marriage.

Equitable Distribution

Equitable distribution considers each spouse’s contributions to the marriage – both monetary and non-monetary – when determining who gets what. A judge may award one spouse a larger share of the marital property.

Separate Property

Separate property that was acquired before the marriage was a gift or inherited is not subject to equitable distribution. It is considered the individual acquiring a spouse’s property. However, any appreciation in value of the separate property during the marriage may be considered marital property.

Factors Considered in Property Division

Some of the common factors looked at when dividing marital property include:

Length of Marriage

Courts will usually make a more equal distribution of assets in longer marriages compared to short-term marriages.

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Each Spouse’s Contribution

This includes non-monetary contributions like being a homemaker, and caretaker of children, as well as monetary contributions through employment and other means.

Each Spouse’s Earning Capacity

Courts will examine the ability of each spouse to generate income in the future when determining equitable distribution.

Spousal Maintenance (Alimony)

In addition to marital property, a spouse may be awarded spousal maintenance, also called alimony. The purpose of spousal maintenance is to provide financial support, often temporarily, to a spouse who was financially dependent during the marriage.

Temporary Maintenance

Temporary maintenance may be awarded while the divorce is being finalized. It sets the status quo to help ease the transition during the divorce process.

Post-Divorce Maintenance

Post-divorce maintenance is spousal support ordered as part of the final judgment, designed to allow the receiving spouse time to become self-supporting after the divorce. There is no fixed duration and depends on the facts of each case.

Factors Considered For Alimony

Some common factors considered when awarding spousal maintenance include:

Length of Marriage

Longer marriages increase the likelihood and duration of a maintenance award.

Age and Health of Parties

If one spouse is unable to be self-supporting due to age, poor health, or disability, maintenance may be appropriate.

Present and Future Earning Capacity

The education, job skills, employment history, and future earnings potential of each spouse are examined to determine need.

Child Custody

If there are children resulting from the marriage, child custody must also be addressed in the divorce. This involves both legal and physical custody.

Legal Custody

Legal custody involves the major decision-making authority regarding a child’s health, education, and welfare. Courts often grant joint legal custody to both parents.

Physical Custody

Physical custody determines where the child lives and which parent has custody on a day-to-day basis. There are a few options when awarding physical custody:

Joint Custody

The child lives with both parents, splitting time as close to 50/50 as possible. Courts often aim for joint custody if practical.

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Sole Custody

Sole physical custody awards custody to one parent with limited visitation rights to the other. Usually when parents cannot cooperate and co-parent effectively.

Child Support

The non-custodial parent will typically be required to pay child support. Child support is regulated at the state level according to established child support guidelines.

New York Child Support Guidelines

New York bases child support amounts on a calculation involving parental income and number of children. There are caps on how much child support can be ordered based on income.

College Expenses

In addition to standard child support, courts can order non-custodial parents to contribute to college expenses for children, including tuition, room and board, etc.

Modifying Support Orders

Child support orders can be later modified by petitioning the court if financial circumstances substantially change for either parent or child.

What is a wife entitled to in a divorce in New York law?

Here is a summary of what a wife is typically entitled to in a divorce in New York:

  • Equitable distribution of marital property – New York is an equitable distribution state, so marital assets and debts are divided fairly between spouses, though not necessarily equally. This includes real estate, pensions, businesses, vehicles, investments, etc.
  • Child custody and support – Custody is determined based on the best interests of the child. The higher-earning spouse will pay guideline child support.
  • Spousal support – A spouse may be awarded temporary or post-divorce spousal maintenance if there is a need. Factors considered include finances, employability, health, and standard of living.
  • Name change – A wife can legally resume the use of her prior surname or another name after the divorce.
  • Personal property – The court decides the fair distribution of personal belongings acquired during the marriage.
  • Enforcement of prenuptial agreements – New York generally upholds prenups, which can define asset distribution.
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While not guaranteed an equal split, a wife in New York can claim equitable marital property and support if justified by circumstances. Custody is based on the child’s welfare.

Conclusion

Divorce can have wide-ranging emotional and financial consequences for those involved. For a wife going through a divorce in New York, she may be entitled to a portion of marital property, possible alimony payments as determined by the court, joint or primary custody of children resulting from the marriage, and child support including potential college expenses.

Every case brings unique facts, so consulting an experienced divorce attorney is crucial for understanding options before any final agreement. At the end of the day, aim for equitable solutions focused on the best interests and care of any children involved.

Frequently Asked Questions

Q1: How long does spousal maintenance usually last in New York?

A: There is no fixed duration for spousal maintenance in New York. It depends greatly on factors like length of marriage, age and health status of the recipient, and employment history. Generally, the goal is for the receiving spouse to use the temporary support to eventually become self-sufficient.

Q2: What happens to retirement accounts in a New York divorce?

A: Retirement accounts like 401(k)s and pensions earned during the marriage are typically considered marital property subject to equitable distribution, either by splitting the asset or offsetting its value with other marital property.

Q3: Can I get alimony if my spouse committed adultery in New York?

A: New York is a no-fault divorce state, meaning marital misconduct like adultery generally does not impact alimony awards. The exceptions are if the misconduct costs money (like supporting an affair partner) or impacts the custodial parent’s ability to care for children properly.

Q4: Does New York recognize legal separation or only divorce?

A: New York recognizes both legal separation and divorce. In a legal separation you remain legally married but work out agreements for property, support, and custody, similar to divorce. Some may choose legal separation for religious reasons or if they want to remain on a spouse’s health plan, for example.

Q5: Can I receive part of my spouse’s inheritance or gifts in our New York divorce?

A: Inheritances and gifts are generally considered separate property belonging only to the recipient spouse in New York, even gifts received during the marriage. Appreciation in value during marriage may be deemed marital property though, so courts have discretion based on the facts.

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