OTHER ISSUES IN DIVORCE & SEPARATION 

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).

Spousal Support (Maintenance) - Spousal maintenance (alimony) may or may not be awarded and may be permanent or limited in duration 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:

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 / Exclusive Use and Occupancy of Marital Residence - (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.  It is possible, in situations where the facts or circumstances are not appropriate for an Order of Protection, to seek an Order of the Supreme Court which awards exclusive use and occupancy of the parties' home to one spouse, thereby, effectively, providing some of the benefits of a 'Stay Away' Order of Protection by separating the parties without the threat of arrest which frequently induces parties to contest removal from the home even where they recognize the benefits of separate residences.

Keith, Shapiro & Ford - Garden City, New York (516)222-0200
 Offices in Nassau and Queens Counties