Divorce can be a very complicated, confusing and emotional experience that oftentimes does not offer clear-cut or black-and-white choices. You will need the counsel and advice of an expert Rochester Divorce attorney to assess risk and to best understand your options in the divorce process. The Marino Law Group, PLLC is your resource to navigate through this complex process of divorce.
Generally, there are two types of divorces – uncontested and contested divorces. It is important to note that even though attorneys may be involved in the process, that does not necessarily mean the divorce is contested. Divorce attorneys for the spouses frequently negotiate terms of settlement in order to avoid costly litigation and subjecting their clients to undo risk.
Uncontested divorces are instances where both spouses generally agree on the terms of divorce. Even if the parties agree on the terms, it is still paramount that the paperwork accurately reflects how the assets, debts and other marriage-related items are divided. The very essence of a divorce is to ensure that you do not have any future entanglements with your ex-spouse.
Usually, in the relief of having the divorce completed, the Qualified Domestic Relation Order for retirement or pension assets can be overlooked. As these assets are a key to settlement of a divorce and for future financial planning, it is very important to ensure that you get control over that asset as soon as possible – even if decades before you would need utilize the asset.
A Qualified Domestic Relation Order transfers ownership of pre-tax or tax-deferred assets without that transfer becoming a taxable event. Most often these are either pension benefits (for example – Kodak SIP, or the NYSTRS Pension) or individualretirement benefits (for example - a 401(k), IRA, or a 403(b)).
Child Custody can be an easy and collaborative, or it can be a gut-wrenching and contentious. Child Custody relates to two distinct aspects of parenting – decision making and residency time. In making such determinations, the Justice, Judge or Court Attorney Referee that is assigned to the family will primarily consider the child’s best interest. Please keep in mind that this is an objective standard but the Court will also review these following factors:
The parental suitability of each of the parents, including the duration and quality of each parent’s relationship.
Each parent’s mental health, physical health, and ability to provide educational, financial, special needs and emotional support for the child.
The Court will review any history of domestic violence or child abuse, and any other relevant factors that may impact the upbringing of the child including substance abuse and criminal activity.
Regardless of your circumstances, it is of the utmost importance to have a Custody Order that clearly details the rights and obligations of both parents. Absent a custody order, either parent is assumed to have joint custodial rights to any child, and may exercise those rights as they see fit. If you are in circumstances where one parent is uninvolved or absent, or is unsuitable or unavailable to parent their child, the Custody Order should accurately reflect each parent’s actual involvement.
A more recent development in Family Law is the ability for a grandparent to petition for formal custody of their grandchild. There is a different standard for a grandparent petitioning for visitation – which is detailed further below.
A grandparent seeking formal custody, including decision-making authority, must show extraordinary circumstances that would compel the Court to substitute the grandparent for a parent. There is a strong presumption in favor of parents over grandparents – and this commonly would require showing a complete breakdown in the parent’s ability to appropriately care for the child.
On the other hand, grandparents petitioning for visitation are only required to satisfy the “best interest” standard in order to establish or maintain a relationship between the child and grandparent.
Child Support is normally the most contentious aspect of Family Court. Although the Family Court Act does provide a generous amount of autonomy and discretion to Child Support Magistrates to deviate from the standard child support obligations, it is important to have counsel familiar with the computation of child support to assist you.
Child Support is computed based on parental income and residency time with the child. The Court also has discretion to order the parents to divide additional expenses, including health insurance for the child, out-of-pocket medical expenses, day care expenses, extracurricular activities and even college expenses. Each computation can be complex depending upon the regularity of the parties’ earnings, where the income originates and sometimes can be based on the needs of the parent with physical residency of the child. There is also a self-support reserve, whereby a parent may only be required to pay a minimum amount of child support if they do not earn sufficient income.
It is important to mention that there is no presumption that a mother is automatically conferred custody of a child, or that a mother is the ‘better’ parent. Fathers have the same rights and can often be awarded custody of a child. As noted above, the applied standard is the best interest of the child. This may result in the child residing either with the mother or the father.
Family Court covers a number of other types of petitions and actions, including Adoptions, Paternity, Family Offenses, Juvenile Delinquency, PINS (Person in Need of Supervision), Neglect and Child Abuse, and Child Protective Services.
If you have questions or concerns about any of these more specialized areas of Family Court, please contact the Marino Law Group, PLLC and we can explore the details of your individual case.
