FAQs

Advocate LLP recently obtained a large award for one of its client's from the United Stated District Court for the Southern of New York and successfully upheld the award in the Second Circuit Court of Appeals. Mr. Advocate was also involved in winning a multi-million dollar punitive damages verdict against the Estate of Andy Warhol and successfully defended one of New York's highest profile criminal environmental cases following a six-week trial in the Eastern District of New York Federal Court.

  • Can I file for divorce in New York?
    • As a general rule, any spouse can file for a divorce if they have continuously been a resident of New York for at least one year. However, residence does not mean the same as domicile. Parties can sometimes temporarily move out of New York for brief periods, but still be considered a resident of New York for purposes of commencing a divorce action.
  • Where do divorce actions get filed?
    • All actions for divorce must be commenced in Supreme Court in the county in which either of the parties resides.
  • Do I need to seek a divorce if I am looking for child or spousal support or child custody?
    • No. While a divorce case will certainly address child support, spousal support and child custody issues, parties do not need to commence a divorce to have a court address those concerns. A party can file a petition in the family court to address each of those issues. Family court, however, cannot issue a divorce or deal with issues concerning distribution of marital property.
  • Does New York recognize a palimony?
    • Palimony refers to the concept of support for a non-married partner akin to spousal support (also referred to as alimony). New York does not recognize palimony and an unmarried partner will, in most circumstances, not be entitled to support except for child support.
  • What happens if I cannot reach an agreement with my spouse or my child's parent concerning custody?
    • The issue of custody will then need to be decided by the court. Often, judges will appoint a mental health professional to conduct a forensic evaluation of the parties and the child and report to the court on their findings and observations.
  • What Does the forensic process entail?
    • A forensic is usually either a social worker, psychologist or psychiatrist trained to perform forensic evaluations. They meet with both parents, the child and often speak to collateral sources that each parent believes may have useful information, such as the grandparents or the child's school teachers. At the end, they write a detailed report of their observations and impressions of the parties, which the court may rely on in the custody trial.
  • Who pays for the forensic?
    • The court can order that the cost of the forensic be split between the parties according to the parties' incomes or financial resources. If the parties lack the funds to pay the cost, the court can appoint a forensic to be paid by the state.
  • Is the forensic's opinion binding upon a court?
    • No. The ultimate decision on custody is for the judge to make. The forensic may be a useful tool for the court but the court does not have to accept any of the forensic's observations or opinions.
  • Is there a formula for determining spousal support?
    • Effective October 12, 2010, the New York legislature enacted rules for determining spousal support during the pendency of a divorce action. The new rules apply to cases commenced after October 12, 2010 and concern spousal support while the court case is pending. The rules provide that, where one spouse is earning X percent of the other spouse, they are entitled to support at the lesser of (a) 40% of the payor spouse's gross income or (b) 30% of the payor spouse's gross income less 20% of the income of the payee spouse. However, the court's have some discretion to determining the amount of spousal support and several judges have already deviated from a strict application of the new guidelines.
  • How is marital property divided?
    • New York and New Jersey are equitable distribution states, as opposed to community property states. What that means is that property is divided "equitably," which, in itself means very little. Property is divided based on the contributions (both financial and non-financial) of each spouse during the marriage. The length of the marriage is one of the key factors, as is the presence of children, and the contributions that each spouse made to each other and to the marriage.
  • Do I have to pay child support if I have our children half (50%) of the time?
    • Under New York law, when parents equally share a child's time, the parent who earns more money must pay child support to the other parent. In New Jersey, the amount of time that each parent has the child is a factor in calculating child support, but not in New York.
  • I already have a child from another relationship. Does that impact the amount I will have to pay in child support for my next child?
    • Only if you are paying support to the older child as a result of a court order. If you are voluntarily paying support, that will not impact the support you will owe the younger child.
  • How long will my divorce case take?
    • Cases can be resolved within weeks if both parties can come to terms on an agreement. However, if no agreement is reached, divorces cases can last between 12 to 15 months and possibly much longer depending on how many motions or other issues arise prior to the trial.