Frequently Asked Divorce Questions
by Catharine M. Venzon, Esq. of Venzon Law Firm, PC

A Court grants a judgment of separation when either of the parties brings an action for separation in the Supreme Court. A Court may grant separation based upon the following grounds, which are similar to the grounds for seeking a divorce:

• Cruel and inhuman treatment
• Imprisonment for more than three years
• Adultery
• Abandonment for less than one year
• Non-support

If the Court grants a judgment of separation based upon any of these grounds, either party may sue for a "no-fault" divorce one year after the filing of the judgment and living separate and apart. A divorce will not occur automatically.

There are several grounds under which a person may seek a divorce from his or her spouse. The following grounds are based upon the "fault" of one of the parties:

• Cruel and inhuman treatment
• Abandonment for one or more years
• Imprisonment for three or more years
• Adultery

The "no-fault" grounds are as follows:

• One year of living apart under a separation agreement;
• One year of living apart under a judgment of separation

A separation agreement is a comprehensive contract where the parties agree to live separate and apart for the rest of their lives. The agreement must set forth rights and duties with respect to important issues such as custody, visitation, child support, distribution of property and all other matters that arise at the end of a marital relationship. Each of the parties should consult their own attorney to draft and prepare the agreement so that these complex issues can be analyzed and resolved appropriately. The final agreement is then filed with the clerk of the county where either spouse resides. At the end of one year from the date of the agreement, either spouse may initiate a suit for a "no-fault" divorce.

Marital property is all property acquired during the marriage - regardless of how title is actually held. Separate property includes all property acquired before the marriage and also includes inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.

The "basic child support obligation" is defined in Domestic Relations Law Section 240 (1-b)(b)(1) to mean "the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except an increased pursuant to subparagraphs 4, 5, 6 and 7 of such paragraph."

Yes, a Court can attribute or impute income to either parent from any resources as may be available to the parent. These may include but not be limited to:

• non-income producing assets;
• meals, lodging, memberships, cars or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use or which expenditures directly or indirectly confer personal economic benefits;
• fringe benefits as part of compensation for employment;
• money, goods or services provided by relatives and friends.

Yes, and this is wide ranging and could include anything from a license to practice medicine, a piece of artwork, or a coin collection (passive appreciation).

Yes. See Court of Appeals case where, "The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the Court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage." The Court determined that as there was "no extraordinary circumstances present, application of the statutory percentage to the income above the $80,000 was justified and not an abuse of discretion."

• Mandatory award of child care expenses;
• Discretionary award of child care expenses;
• Mandatory award of health care expenses;
• Discretionary award of child educational expenses--private school and college expenses (Historical Perspective).

Once arriving at the combined parental income, the sum calculated is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:

• 17% of the combined parental income for one child;
• 25% of the combined parental income for two children;
• 29% of the combined parental income for three children;
• 31% of the combined parental income for four children;
• no more than 35% of the combined parental income for five or more children.

Family Court Act Section 454 "Powers of the Court on violation of a support order" provides that upon a finding that a respondent has failed to comply with any lawful order of support, the Court may:

• Enter a money judgment;
• Make an income deduction order for support enforcement;
• Require the respondent to post an undertaking;
• Make an order of sequestration;
• Suspend the respondent's driving privileges;
• Suspend the respondent's state professional business license;
• Suspend the recreational license(s) of the respondent; or
• Require the respondent, if the persons for whom respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the Social Services Law.

There are additional remedies concerning attorney's fees or jail time. Also, under Family Court Act Section 458-a, if support arrears are equivalent to or greater than the amount of current support due for a period of four months, the Court may order the Department of Motor Vehicles to suspend the respondent's driving privileges. It is unknown as to whether or not there is a current procedure for this in effect. Similarly, Family Court Act Section 458-b provides for suspension of a respondent's business or professional license under similar circumstances.

In Supreme Court, similar provisions apply to suspension of a driver's license under Domestic Relations Law Section 244-b and to suspension of a business or professional license under DRL Section 244-c.

Yes, the Court can impute a dollar amount income based upon the parent's former resources. In other words, the Court can compute income as if the parent was working at the same job.

Gross income means all income from whatever source derived, including but not limited to:

• Compensation for services, including fees, commissions, fringe benefits and similar items;
• Gross income derived from business;
• Gains derived from dealings in property;
• Interest;
• Rents;
• Royalties;
• Dividends;
• Alimony and separate maintenance payments;
• Annuities;
• Income from life insurance and endowment contracts;
• Pensions;
• Income from discharge of indebtedness;
• Distributive share of partnership gross income;
• Income in respect of a decedent; and
• Income from an interest in an estate of trust.

The age at which child support ceases is 21, although this differs in custody and visitation issues where the age of majority is 18. But, for purposes of the parental support duty, the age of majority remains at 21. A Court may in its discretion deviate from the basic child support obligation if the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate. Factors a Court may consider in deviating from the basic child support obligation are:

• The financial resources of the custodial and non-custodial parent and those of the child;
• The physical and emotional health of the child and his/her special needs an aptitudes;
• The standard of living the child would have enjoyed had the marriage of household not been dissolved;
• The tax consequences of the parties; the non-monetary contributions made by the parents toward the care and well-being of the child;
• The educational needs of either parent;
• A determination that there exists comparative financial circumstances between the parents which reflects a wide disparity in gross income between the spouses;
• The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support other than the child of the instant action and whose support has not been deducted from income and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support the children are less than the resources available to support the children not subject to the instant action;
• Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof;
• And any other factors the court determines relevant in each case.