Divorce and family law, decided on the facts

This is the part of family law that decides how people live afterward: who the children are with on a Tuesday, whose name is on the house, and what the household budget looks like in three years. The firm handles matrimonial and family matters in Suffolk and Nassau County — divorce contested and uncontested, equitable distribution, maintenance, child support, custody and parenting time, orders of protection, prenuptial and postnuptial agreements, adoption, and appeals.

Because the firm’s principal practice is in estate planning, elder law and probate, matrimonial matters here are handled with an eye to what they do to an estate plan — beneficiary designations that survive a divorce and should not, a right of election that a waiver was supposed to address, a trust funded during a marriage, a pension nobody divided because the order was never drafted. Those problems surface years later in a probate file, which is where the firm usually sees them.

Divorce in Suffolk and Nassau County

New York has seven grounds for divorce. Six are fault- or separation-based and are still available; the seventh, added in 2010, is the no-fault ground — a sworn statement that the relationship has broken down irretrievably for at least six months. Almost every case now proceeds on the seventh.

The single most useful thing to understand about that ground is the condition buried inside it. No judgment of divorce may be entered on the no-fault ground until the economic and child-related issues are resolved, by agreement or by the court: distribution of marital property, spousal maintenance, child support, counsel and expert fees, and custody and parenting time. The no-fault ground removed the fight over why the marriage ended. It did nothing to the fight over what happens next, and that is where every divorce actually lives.

The six months is not a waiting period either. It describes how long the breakdown must have lasted before the statement is made, not a queue the case has to sit in.

Where the case is heard

A divorce is a Supreme Court action, filed in the county. Suffolk and Nassau each have their own matrimonial parts, and their own local practice. Custody, support, visitation and family offense matters can also be heard in Family Court, which has its own jurisdiction over them — so a family sometimes has proceedings running in two courts at once. Part of what counsel does early is decide which forum a given question belongs in.

Uncontested divorce

“Uncontested” is a procedural description, not an emotional one. A divorce is uncontested when the other spouse agrees with every part of it — or when that spouse defaults, filing no answer and never appearing. It is contested when an answer disputes the complaint, or when any economic or custodial issue is still open.

This catches people out in both directions. A cordial couple who still have not decided what happens to a pension have a contested case. Two people who have not spoken in three years, one of whom ignores the papers, have an uncontested one. And because of the condition inside the no-fault ground, a case is only truly uncontested once the grounds and everything else is settled, normally in a written stipulation of settlement incorporated into the judgment.

Most cases that finish uncontested did not start that way. The label describes the posture at submission, not the temperature of the marriage.

What the court still reviews

An uncontested divorce is not a paperwork exercise the court rubber-stamps. Child support is measured against the statutory formula, and a settlement that does not recite the guideline amount and state the reason for any departure from it will be rejected. The same discipline applies to provisions that waive maintenance. Agreements drafted to be enforceable years later are drafted differently from agreements drafted to be signed quickly.

Contested divorce

A contested divorce is a lawsuit with a schedule: pleadings, preliminary conference, financial disclosure, depositions where needed, motions on temporary relief, valuation of anything that has to be valued, and trial if the case does not settle first. Most settle. The work done in the disclosure phase is usually what makes settlement possible, because most disputes between spouses about money turn out to be disputes about facts neither of them has verified.

Temporary relief while the case runs

A divorce can take a long time, and the household still has to function. The court can order temporary maintenance, temporary child support, exclusive occupancy of the residence, temporary custody and parenting time, and payment of counsel and expert fees while the case is pending. Temporary maintenance is computed under its own guideline provision, separate from the one that governs the final award — and appellate courts rarely disturb a temporary award, holding that the remedy for a bad one is a prompt trial rather than an appeal.

Where the money actually gets decided

Valuation. A closely held business, a professional practice, a pension, deferred compensation, a property whose value is disputed, or a claim that separate property has appreciated through a spouse’s efforts — each of these may require an appraiser or a forensic accountant, and each is a place where the outcome is driven by the quality of the evidence rather than by argument.

Equitable distribution of property

Equitable distribution asks three questions in order: what is marital, what is separate, and how should the marital part be divided.

Marital and separate

Marital property is everything either spouse acquired during the marriage and before a separation agreement or the commencement of the action — regardless of whose name is on it. Title does not control, and the belief that it does is one of the most frequent and costly assumptions people arrive with.

Separate property is what was owned before the marriage; what came by inheritance, bequest or gift from someone other than the spouse; compensation for personal injuries; anything acquired in exchange for separate property; and anything a written agreement designates as separate.

Appreciation, commingling and tracing

The increase in value of separate property stays separate to the extent it was passive — driven by the market or by inflation. It can become marital to the extent it was active, meaning it is traceable in part to the efforts of either spouse, and the non-titled spouse’s indirect contributions count. Proving which is which is an evidentiary exercise, and the burden sits with the spouse claiming a share.

Commingling is the other half of the problem. Separate funds deposited into a joint account, inheritance used to buy a jointly titled asset, or separate money spent on marital property can lose their character unless they can be traced. Records decide these questions, not recollection.

Retirement assets

A pension is marital to the extent the service credit was earned during the marriage. New York expresses that share as a fraction — service credit during the marriage over total service credit at retirement — under a formula from a 1984 Court of Appeals decision that remains the convention. It is not mandatory, and it can be modified by the court or by agreement.

The judgment of divorce does not itself divide the pension. A separate order — a qualified domestic relations order for a private plan, a domestic relations order for a public one — has to be drafted, approved and served on the plan administrator before anyone is paid. This step is skipped more often than it should be, and the discovery that it was skipped usually comes at retirement, when fixing it is hardest.

Spousal maintenance and alimony

New York’s term is maintenance. “Alimony” is the older word and the one most people search for, but it is not what the statute calls it, and the distinction matters because the modern statute works very differently from the discretionary regime the word evokes.

There are two separate species. Temporary maintenance is paid while the action is pending and ends at judgment. Post-divorce maintenance is what the judgment awards going forward. They are computed under parallel but distinct provisions, and the first does not predict the second.

The guideline, and the cap

Each provision supplies a formula applied to the payor’s income up to a statutory income cap, in two variants depending on whether the payor is also paying child support. Up to the cap the guideline amount is presumptive. Above it the court exercises discretion using the statutory factors and states its reasons. The cap is adjusted on a recurring cycle and the current figure is published by the Office of Court Administration — which is exactly why no number appears on this page.

Duration

The statute provides an advisory schedule of durations keyed to the length of the marriage, rising with it. Advisory means the court may depart from it, and in a long marriage may award maintenance with no fixed end date. Reports that New York abolished lifetime maintenance are wrong.

Deviation

The court can depart from the guideline where the result would be unjust or inappropriate, weighing an enumerated list: age and health, present and future earning capacity, the need for education or training, wasteful dissipation of assets, a child whose care keeps a parent home, tax consequences, the standard of living established during the marriage, and acts that inhibited a spouse’s earning capacity — which the statute expressly says includes domestic violence.

Parties can also opt out of the whole scheme by a validly executed agreement, subject to the limits described under prenuptial and postnuptial agreements.

Child support

Child support in New York runs on the Child Support Standards Act, which appears twice in identical substance — once in the Domestic Relations Law for Supreme Court cases and once in the Family Court Act. The method has three steps.

1. Income. Each parent’s income is determined under a statutory definition that is deliberately broad: gross income as reported or as it should have been reported for tax purposes, plus investment income and a list of benefits, less specified deductions. The court can also impute income — from non-income-producing assets, from perquisites and fringe benefits, from support provided by family, or from earning capacity the parent is not using — weighing work history, skills, education, age, health and the local job market.
2. The basic obligation. The parents’ incomes are combined and multiplied by a percentage fixed by statute according to the number of children.
3. Proration. That obligation is divided between the parents in proportion to their incomes, and the non-custodial parent pays their share.

The cap, and what happens above it

The percentages apply as of right only up to a combined parental income amount that is periodically adjusted. Above it the court may apply the percentages, or the statutory factors, or both — but must articulate why. The current combined income figure, along with the self-support reserve and the poverty guideline amounts that drive the low-income floors, appears on the Child Support Standards Chart published by the New York State Office of Temporary and Disability Assistance.

The add-ons

Three categories sit outside the basic obligation and are prorated by income. Child care reasonably incurred so a parent can work or train for work. Health insurance premiums and unreimbursed medical expenses. And educational expenses — private school, special or enriched education, college — which are discretionary, awarded where the court finds the interests of justice require it. College contribution is not an entitlement, and treating it as one is a common error.

Modification

An order can be modified on any of three grounds: a substantial change in circumstances; the passage of a set number of years since the order was made, modified or adjusted; or a change in either parent’s gross income by a set percentage or more. The years and the percentage are fixed by the Legislature. The second and third grounds apply unless the parties specifically opted out of them in a validly executed agreement — a drafting point worth knowing before signing, not after.

Custody and parenting time

Two things are being decided, and they are frequently confused. Legal custody is authority over major decisions — education, non-emergency medical care, religious upbringing. Residential custody is where the child primarily lives. Joint legal custody with primary residence to one parent is a common outcome; joint legal custody tends not to work, and courts tend not to order it, where the parents cannot communicate at all.

The standard

The best interests of the child, on the totality of the circumstances. The statute says plainly that there is no prima facie right to custody in either parent. New York has no maternal preference, no tender-years doctrine, and no presumption in favor of joint custody. Pages written from generic or dated material often imply otherwise; they are wrong.

There is also no age at which a child decides. A child’s preference is one factor, weighed according to age and maturity, usually developed through an attorney appointed for the child.

Domestic violence

Where domestic violence is alleged and proven by a preponderance of the evidence, the court must consider its effect on the child’s best interests and must state on the record how that finding affected the decision. The statute also protects a parent who acted in good faith to shield a child from abuse or from exposure to violence. Note the mechanism precisely: this is a mandatory consideration and a mandatory explanation, not an automatic bar. Any page promising that an abusive parent will lose custody is promising something the statute does not say.

Relocation

A custodial parent who wants to move with the child, far enough that the other parent’s time is affected, needs consent or permission. New York decided in 1996 to stop treating relocation as a threshold test to be passed and to decide each request on its own facts, with the child’s best interests predominant. The court weighs each parent’s reasons for seeking or opposing the move, the quality of the child’s relationship with each, the effect on future contact, whether the move would genuinely improve the child’s and custodial parent’s lives, whether the relationship can be preserved through a revised schedule, and the good faith of both parties.

Modification

An existing order is modified on a showing of a change in circumstances such that modification is required to serve the child’s best interests. Stability has weight; a court does not revisit custody because one parent has changed their mind.

Orders of protection and domestic violence

Three different courts can issue an order of protection in New York, and they are not the same thing.

Jurisdiction is concurrent, not exclusive. Choosing Family Court does not strip the criminal court of its jurisdiction, and a person may hold orders from both at once. Officials are required to tell a complainant that both forums exist and that an arrest is not required to start either.

Who qualifies

Family Court’s family offense jurisdiction reaches people related by blood or marriage, former spouses whether or not they ever lived together, people with a child in common whether or not they were ever married or lived together, and people in an intimate relationship — which the court assesses by the nature, frequency and duration of the interaction, and which expressly excludes casual acquaintance and ordinary business or social contact. This is broader than the word “domestic” suggests: dating partners who never lived together qualify in New York.

Temporary orders

On the filing of a petition, the court may issue a temporary order for good cause, with or without notice to the other side. The statute states expressly that a temporary order of protection is not a finding of wrongdoing. A final order requires an actual finding that a family offense was committed. Durations are set by statute, with a longer period available where aggravating circumstances are found.

Mandatory arrest

New York directs police to arrest, and forbids them to attempt to mediate or reconcile, where they have reasonable cause to believe a felony family offense has been committed between members of the same family or household, or that an order of protection has been violated. For family offense misdemeanors an arrest is required unless the victim asks otherwise. Where both parties appear to have committed offenses the officer must identify the primary physical aggressor, weighing comparative injury, threats, prior history and whether either acted in self-defense. This is stricter than the practice in most states, and it means a call to the police often produces an arrest whether or not the caller wanted one.

How this lands in a divorce

Two places. Custody, as described above. And — since a 2020 amendment — equitable distribution, where domestic violence committed by one party against the other is now an enumerated factor the court weighs in dividing property. The familiar line that “New York is no-fault, so conduct never affects the money” is no longer accurate as to domestic violence specifically, though ordinary marital fault still does not drive distribution.

Prenuptial and postnuptial agreements

An agreement made before or during a marriage is enforceable in a matrimonial action if it meets three requirements, all of them, without exception: it is in writing, it is signed by both parties, and it is acknowledged in the manner required to entitle a deed to be recorded.

The third is where agreements die. An acknowledgment is a specific notarial act with specific language; witnesses are not an acknowledgment, and a signature notarized incorrectly is not one either. New York courts enforce the requirement strictly and have held the defect generally cannot be cured after the fact. An agreement that was fair, negotiated and fully disclosed can be unenforceable a decade later because of how it was executed in an afternoon.

What an agreement can do

• Fix how separate and marital property will be owned, divided or distributed
• Set the amount and duration of maintenance, or waive it — subject to the rule that a spouse cannot be contracted into becoming a public charge, and subject to review for fairness when made and unconscionability at judgment
• Provide for a testamentary provision, or waive the right of election against a will — which is where this subject meets estate planning, and why the two should be drafted by people who are talking to each other
• Address the care and education of a child, within the limits below

What it cannot do

• Fix custody or parenting time so as to bind the court. Custody is decided on the child’s best interests at the time the question arises. A custody clause in a prenuptial agreement is not enforceable as written.
• Bargain child support below the statutory obligation in a way that binds the court. Any provision touching support must comply with the statutory recitation requirements or it is vulnerable.

Setting one aside

Spouses and prospective spouses are held to a standard of good faith stricter than ordinary contracting parties, and transactions between them get closer scrutiny. An agreement can be set aside for fraud, duress, overreaching or unconscionability — and, importantly, on grounds that would be insufficient to undo an ordinary commercial contract. No proof of actual fraud is required where the result is manifestly unfair and the product of overreaching. A defect in the execution formalities is an independent basis, separate from all of that.

Adoption

New York organizes adoption into two statutory categories. An agency adoption is one where the child is in the care of an authorized agency, public or private — which covers foster care adoptions after a termination of parental rights, and voluntary surrenders. A private placement adoption is defined as any adoption that is not an agency adoption, and it is the larger category: stepparent adoptions, relative adoptions, direct placements from a birth parent, and international adoptions all sit inside it.

Proceedings may be brought in Family Court or in Surrogate’s Court. For Suffolk County families, Family Court sits in Central Islip and in Riverhead.

Who may adopt

The statute permits an adult unmarried person, an adult married couple together, or two unmarried adult intimate partners together to adopt. Married persons who are separated may adopt under specified conditions, and a couple may together adopt a child of either of them.

Two situations worth naming separately

• Second-parent adoption. The unmarried partner of a biological parent may adopt the child without terminating the biological parent’s rights, where that parent consents — established by the Court of Appeals in 1995 and still the mechanism by which a non-biological parent secures legal parentage where marital presumptions do not cleanly apply. Standing to seek custody or visitation has expanded since, but standing is not parentage. Adoption remains the durable answer.
• Adult adoption. The statute permits the adoption of another person, not only a minor. Adult adoptions are used for stepchildren who reached majority before anyone got around to it, and in estate planning where the goal is to make a relationship legal as well as real.

The home study

In a private placement adoption the court must certify the prospective adoptive parents as qualified before the child is placed in their temporary custody, and that certification rests on a home study: a licensed social worker examines the home, finances, health, references, criminal history and child abuse registry clearances. Pre-certification is not required in a stepparent adoption, or in an international adoption where the child already lives with the adopting family — an exception that frequently surprises people. Agency adoptions run through the agency’s own approval process.

What the process involves

A petition; the consents the statute requires, or a judicial finding dispensing with consent, or a prior termination of parental rights; supporting documentation; a court investigation; and a hearing at which the judge signs the order, after which a new birth certificate issues.

Matrimonial and family law appeals

Suffolk and Nassau sit in the Appellate Division, Second Department, in Brooklyn. That matters more than it sounds: the four departments do not always agree, and authority from the First or Third Department is persuasive on Long Island rather than binding.

The deadline, and what starts it

An appeal is taken by serving and filing a notice of appeal. The clock does not run from the date of the decision, or from the date the order was entered, or from the day you found out about it. It runs from service on the appellant, by a party, of a copy of the judgment or order together with written notice of its entry — and if you served it yourself with notice of entry, from that date. The period is fixed by statute, it is jurisdictional, and the court cannot extend it. Family Court appeals run under their own article with their own timing.

What the appellate court actually does

An appeal is a review of the record made below. No new evidence, no new witnesses, no second chance to explain. Arguments not preserved in the trial court are generally not reviewable.

The standards differ by issue. A custody determination is upheld where it has a sound and substantial basis in the record; the appellate court gives real deference to the trial judge who saw the witnesses. Equitable distribution and maintenance are reviewed for improvident exercise of discretion — essentially, whether the court considered the statutory factors and explained itself. But because matrimonial actions are equitable, the Appellate Division’s power over the facts is broader than in an ordinary appeal, and it can substitute its own determination.

Documents to bring

The first meeting goes faster and produces better advice if you bring whatever you have of the following. Missing items are normal — bring what exists.

• Three years of tax returns, personal and for any business, with all schedules
• Recent pay stubs and any documentation of bonus, commission or equity compensation
• Statements for every bank, brokerage, retirement and pension account, in either name
• The deed, mortgage statement and most recent tax bill for any real property
• Documentation of anything owned before the marriage, inherited or received as a gift
• Any existing agreement — prenuptial, postnuptial, separation — and any prior court order
• Life and health insurance policies, and the current beneficiary designations
• A list of debts in either name, with balances
• The children’s school, medical and child care information, and the current schedule as it actually runs
• Any order of protection, police report or Family Court paper, whichever court issued it

Frequently asked questions