MATRIMONIAL AND FAMILY MATTERS

Divorce, there are two types-- absolute and limited. An absolute divorce, (also called a "divorce a vinculo matrimonii" is a judicial termination of a marriage based on marital misconduct or other statutory cause arising after the marriage ceremony. As a result of an absolute divorce both parties' status becomes single again.

Several jurisdictions' statutes authorize limited divorces, or "divorce a mensa et thoro." The consequences of limited divorces will vary from state to state. Typically, a limited divorce is commonly referred to as a Separation Decree; the right to cohabitation is terminated but the marriage is undissolved and the status of the parties is not altered.

Many states have enacted what are called No-Fault Divorce Statutes. This is a response to the outdated Common Law Divorce which required proof in a court of law by the divorcing party that the divorcee had done one of several enumerated acts as sufficient grounds for the divorce. This entailed proving that the spouse had committed adultery, or engaged in some other unsavory activity. No-fault divorce eliminates this potentially embarrassing and undesirable requirement by providing for the dissolution of a marriage on a finding that the relationship is no longer viable.

SERPARATION AGREEMENTS

Matrimonial law in New York is based on statutory law and the concept of separation, was not part of the "common law" (principles of law that evolved over time to form the basis of our legal concepts). Under the common law a woman had to reside with her spouse and could not select a separate residence unless the Husband was guilty of wrongful conduct. That concept has been replaced and the law now permits for a married women to live separately from her husband.

New York permits a party to sue for separation on the grounds of cruel and inhuman treatment, abandonment, refusal to support, adultery or confinement to prison for three years. To obtain a judgment of separation, the plaintiff must prove his/her claim in a court of law. Once proven, a court will grant a judgment of separation, which can include provisions for spousal and child support, custody and the other ancillary financial issues, other than equitable distribution, which can only be granted if there is a divorce or termination of the marriage. Separation does not end the marriage but only allows the parties to live apart without being considered to have abandoned the other. Since the parties are still married, although legally separated, they can still be culpable of committing adultery, which has both civil and criminal law implications (despite the fact that criminal prosecution for adultery in New York is extremely rare).

CHILD CUSTODY FACTS

Nearly all states distinguish between legal and physical custody. Legal custody refers to the parental right to make major decisions regarding the child's health, education, and welfare. Physical custody refers to the living arrangements of the child on a day to day basis. There are two basic custody arrangements in the United States, sole custody, the most common, and joint custody. Sole custody assigns to one parent all legal rights, duties, and powers as a parent, including the right to make all decisions. In sole custody, the child resides with the custodial parent; the noncustodial parent is given the right to visit the child. The limited rights and privileges of the noncustodial parent have been expanded in most states over the past decade to provide equal legal access to child-related information of an educational and medical nature, and to make medical decisions in emergencies when the child is in the noncustodial parent's care.

In joint custody arrangements, each parent retains certain rights and responsibilities with respect to the post-divorce parenting of the children. Considerable variation exists between states in the definition of joint custody, and under what circumstances it will be permitted and denied. With joint legal custody, both parents retain power to make decisions about their children, although in many states, the particular decisions to be jointly made must be specified in order to preserve the authority. Joint physical custody statutes are intended to indicate that the child lives with both parents on some shared basis, each parent assuming day to day parental responsibilities.

CHILD SUPPORT

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your Child Support Enforcement Attorney can help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your Child Support Enforcement Attorney will be able to tell you how support award amounts are set in your state and he can also request medical support for your child.

The last step is enforcement of the child support order. The Child Support Enforcement Attorney can help with collecting the money due no matter where the non-custodial parent lives.

PRENUPTIAL AGREEMENTS

A prenuptial (antenuptial) agreement is a contract between prospective spouses that specifies their rights and obligations during their upcoming marriage. Such agreements are drafted in anticipation of the marriage and should be done sufficiently in advance so as to avoid the claim by either party that it was entered into under duress on the eve of marriage. Unlike separation agreements where the relationship of the parties has already deteriorated, preparing a prenuptial agreement is further complicated by the desire to protect one’s financial and other interests while avoiding antagonizing one’s fiancée.

Pre-Nuptial Agreements are contracts between prospective spouses who are contemplating to be married. These contracts define the property rights of each of the prospective spouses during marriage and in the event of death, separation or divorce. A Pre-Nuptial Agreement becomes effective upon marriage.

Domestic Relations Law Section 236, Part B, (3) states that such agreements include the following subject matters: "(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for custody, care, education and maintenance of any child of the parties.

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