OTHER ISSUES IN DIVORCE & SEPARATION
Immediate Need
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Divorces do 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). 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
Restraining Orders - 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 Use and Occupancy of Marital Residence - 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
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(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.
Counsel fees -
Frequently husbands and wives are in vastly different financial
circumstances or, sometimes, one spouse will remove all funds before a
divorce action is started thereby depriving the other of access to the
resource necessary to pay for their attorney. The law recognizes the
pressure placed on an individual without funds to pay for counsel when
their spouse has the ability to pay. The Court will award counsel fees
when necessary to allow the
non-monied spouse to pursue or defend an action for divorce or
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
or Alimony) -
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.
