In every stage of marriage, Meenan & Associates can help to negotiate fair and equitable agreements with your partner, fiancé or spouse.

Certain matters cannot be addressed in a prenup. A prenup is a contract and all contracts have certain limits. For example, a prenup cannot require either party to break the law or prevent one party from prosecuting the other if a crime is committed. Prenups are generally not the correct place to address issues relating to children.

Marriage is entered with the belief that the relationship will last a lifetime. A prenup does not change this fact. It acts as a powerful tool to reduce conflict, save money, and keep decision making in the hands of the couple rather than in the hands of a judge should a marriage end in death or divorce.

A “postnup” is a legal tool available for couples that want to enjoy the benefits of a prenup but are already married. For a postnup agreement, each party discloses all assets (money, property, etc.) and determine what rights and responsibilities each of them has to those assets during marriage. An important step is determining what property is marital property (owned together) and what property belongs to each party individually.

New York State has predetermined factors and formulas that courts employ to distribute property fairly upon divorce. However, a valid postnup will be recognized by the court even if it differs from that formula. For a postnup to be considered “valid” it must protect both spouses, must have been entered into with full and fair disclosure of assets, and must be executed properly.

We help couples and families deal with difficult family law issues in all stages of the life of a family, from drafting pre-nuptial agreements for individuals planning on getting married, to helping clients obtain a divorce from their spouses. We understand that divorce and separation can be one of the most challenging life events and we bring sensitivity, compassion and caring to our handling of family and divorce law matters.  We will always advocate for you and your rights and seek to protect your interests while striving to ensure that the process is as civil and amicable as possible under the circumstances.

We can help you address and resolve a range of issues, including equitable distribution of marital assets, child support and add-ons, spousal support or maintenance, custody and visitation or access, and parenting agreements. If you and your spouse wish to avoid the expense, stress, and time of a contested, litigated divorce, we can help you to obtain an uncontested divorce that resolves your issues, often without the need for any court proceedings.

Before you file for a divorce in NY, you must (1) meet the residency requirement, and (2) have a “ground” for the divorce; the statutory requirement for the divorce.

To fulfil the residency requirement: either you or your spouse have been living in NY continuously for at least two years before the divorce case is started; or either you or your spouse have been living in NY continuously for at least one year before the divorce case is started and one of the following:

• you were married in NY
• you lived in NY as a married couple
• the grounds for your divorce happened in NY
• both you and your spouse are residents of NY State on the day the divorce is started and the grounds for your divorce happened in NY

There are seven grounds for a divorce in NY and you must allege at least one of the following to obtain a divorce:

• irretrievable breakdown in relationship for a period of at least 6 months
• cruel and inhuman treatment
• abandonment
• imprisonment
• adultery
• divorce after a legal separation agreement
• divorce after a judgment of separation

If you do not meet these requirements, you may not be able to get a divorce in NY.

An “uncontested” divorce is where both your spouse agree to a divorce, and there is an agreement about what will happen to your finances, children and property after the divorce without having to appear in court in front of a Judge. An uncontested divorce relieves the stress and expense of litigation. Most importantly, an uncontested divorce leaves the decision making regarding the family’s finances, property and children to the couple instead of leaving those decisions to a Judge who does not know you and your family.

New York State defines any divorce to be contested if you and your spouse disagree on at least one aspect of divorce and have not resolved all of the issues regarding finances, property and children. Once your divorce is filed, the case is scheduled on the court’s calendar, followed by court conferences and appearances in front of a Judge. If you or your spouse requires interim relief that the other party does not agree to willingly such as child support or spousal maintenance the Judge is able to order this if there is a pending motion requesting it. Often at the preliminary conference the court encourages the parties to resolve the outstanding issues and work out a settlement agreement. In the event the parties are unable settle their issues, there is eventually a trial. In New York State, the process of a contested divorce usually involves the following steps:

• Commencement of the case:  The case begins by one party, the “Plaintiff” by purchasing an index number and filing a summons with notice or a summons and verified complaint. The summons, verified complaint and additional notices directing either party to cease transferring money or property must then be personally served within 120 days of purchasing the index number on the other spouse, by someone who is over the age of 18 and is not a party to the case. In the summons with notice and verified complaint the Plaintiff is required to outline the relief they are requesting. For example if the Plaintiff is asking for custody of the children, child support and equitable distribution of the marital assets, it must be included in these preliminary documents.
• Response: After the other spouse is served with the summons, verified complaint and the required notices, they have 20 days to respond to the divorce without defaulting. If the Defendant spouse responds timely they will appear in the case and either agree to settle the case or contest some or all of the relief requested.
• Pendente Lite Relief: If you or your spouse requires immediate assistance of the court to order interim relief such as child support, spousal maintenance, exclusive use of the marital property, an order of protection (a restraining order) or attorney’s fees either party can file a motion with the court for interim relief.
• Preliminary conference: At the preliminary conference the court will decide which issues of a divorce require its attention and set a date for an official hearing. Each spouse must provide a statement of net worth to each other and filed with the court before the preliminary conference begins.
• Statement of Net Worth: The purpose of the statement of net worth is to provide accurate financial information to the other spouse and to the court. The statement of net worth is an official legal document that must be signed and notarized.
• Attorney for the Child: If the parties are unable to agree to a parenting schedule or on decision making for the children the court will appoint an attorney for the child to represent any children in the case under the age of 18. The cost of the attorney will be paid by the parents. The attorney for the child is required by law to represent the wishes of the child. If the child is unable to articulate their wishes then the attorney for the child must state on the record that they are substituting judgment for the child. In some cases when there allegations of child abuse, neglect, parental unfitness, alienation or domestic violence the court may require supervised visitation. In some cases court appointed forensic evaluators (a child psychologist, social worker, or psychiatrist) are ordered by the court so the court may determine the best interests of the child regarding custody and visitation with the parties. The cost of the forensic evaluator are paid by the parties. In all custody and visitation matters the court is required to determine the best interests of the child.
• Discovery: In a divorce action both parties have a right to a complete and accurate disclosure of each other’s finances and business interests. The parties may be ordered by the Court to provide this information if they do not voluntarily comply with the mandatory exchange of financial documents. The other spouse may also request the court to sign a judicial subpoena’s to obtain that financial information for noncompliance by the other spouse. During this period the parties may also be required to obtain appraisals of any marital assets such as a home or business.
• Trial: If the parties are unable or unwilling to come to a final settlement of all of the issues in the case the matter will be scheduled for a trial. At the trial the parties are required to provide evidence to support their case. The parties may also be required testify and may produce witness. Experts paid by the parties such as business evaluators and child psychologists can also be required to testify. The trial may last several days and be spread over weeks. During the trial, the parties must comply with official court procedures and rules of evidence. After a trial, the court will make a final decision on any unresolved issues. A court decision may be appealed if there are errors of law made by the lower court. All the expenses of a trial and court costs are paid by the parties.

Any property that is obtained after the date of marriage is considered marital property. In the event of divorce the property is subject to equitable distribution. This can result in an equal property division, but not always. In New York,Domestic Relations Law Section 236(B) is the controlling statute for equitable distribution of marital property.
In the equitable distribution of marital property, separate property of the couple is not considered. Only marital property is divided by the court. An equitable property division is one that is fair, considering what each spouse contributed to the marriage, and what each spouse will need to move forward. This does not necessarily require an equal split of the couple’s assets. Instead, the judge will strive for a fair outcome, considering:

• each spouse’s income and property when they married and when they filed for divorce
• the duration of the marriage
• each spouse’s age and health
• the need of the parent with custody to live in the family home and use or own its effects (furniture and so on)
• the pension, health insurance, and inheritance rights either spouse will lose as a result of the divorce, valued as of the date of the divorce
• whether the court has awarded spousal maintenance (alimony)
• whether either spouse has an equitable claim to marital property to which that spouse does not have title, based on that spouse’s contribution of labor, money, or efforts as a spouse, parent, wage earner, or homemaker, including contributions to the other spouse’s earning potential (by, for example, working to put the other spouse through school)
• the liquid or non-liquid character of all marital property
• the probable future financial circumstances of each spouse
• if the marital property includes a component or interest in a business, corporation, or profession, the difficulty of valuing that interest and whether it would be desirable for that interest to be retained intact, free from claims or interference by the other spouse
• the tax consequences to each spouse
• whether either spouse has wastefully dissipated marital assets
• whether either spouse has transferred or encumbered marital property in contemplation of divorce without fair consideration
• any other factor the court expressly finds to be a just and proper consideration

Separate property is defined as assets or property accumulated prior to the date of marriage, inheritance, personal injury settlements. Separate property cannot be comingled with marital assets for marital use or it may be considered in part marital property.

By utilizing experts to evaluate the value of assets our experienced attorneys are able to negotiate a fair settlement. If a trial on these issues is necessary our seasoned litigation team is able to zealously advocate for you.

New York law provides a formula for calculating the amount of child support that a “non-custodial parent” must pay to the parent who has primary residential custody of the child or children, also known as the “custodial parent.” The formula takes into account the parties’ incomes to determine the pro-rata share of the child support payment, plus any maintenance payments, other child support payments and the number of children for whom the child support is paid. Currently, there is a cap of $143,000 on the parties’ income used to calculate child support. However, courts have discretion to calculate child support on income above the cap amount based on the following factors set forth in DRL:

• The financial resources of each parent and the children
• The physical and emotional health of the children and their educational and vocational needs
• The standard of living the children would have had if the parents remained together
• Tax consequences
• Non-monetary contributions each parent may be making to the children
• The educational needs of either parent
• A significant disparity of income between the parents
• The needs of other children not party to the divorce, but only if their resources are less than the children of the divorcing parents
• Extraordinary expenses incurred by the non-custodial parent to exercise parenting time with the children
• Expenses incurred by the non-custodial parent during parenting time that substantially reduce the custodial parent’s expenses
• Any other factors the court determines are relevant.

In New York, the lower-income spouse may be entitled to spousal maintenance (also known as spousal support or alimony) from the higher-income spouse. Maintenance paid while the divorce action is pending is known as temporary or pendente lite maintenance. Post-divorce maintenance is maintenance that is paid to a spouse after the divorce is finalized.

New York has established formulas for determining the appropriate amount of “guideline” maintenance that takes into account the parties’ incomes and whether there are children of the marriage. The formulas are currently based on the paying spouse’s income up to $184,000 and the income of the spouse receiving maintenance.

The maintenance guidelines also establish the following suggested schedule to determine the duration of the maintenance payments, based on the length of the marriage, for how long the maintenance payments should continue:

• Marriage of 0-5 years: 15-30% of length of marriage
• Marriage over 15 years-20 years: 30-40% of length of marriage
• Marriage longer than 20 years: 35-50% of length of marriage

Parties are free to agree to a maintenance amount different than that generated by the formula but are required to state the reasons for not following the guidelines. Courts also can award spousal support above or below the guideline amount — and on income of the payor above the $184,000 cap — based on consideration of the factors in DRL 236(6)(e).

Those factors are:

• the age and health of the parties
• the present or future earning capacity of the parties, including a history of limited participation in the workforce
• the need of one party to incur education or training expenses
• the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded
• the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration
• the existence and duration of a pre-marital joint household or a pre-divorce separate household
• acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law
• the availability and cost of medical insurance for the parties
• the care of children or stepchildren disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity
• the tax consequences to each party
• the standard of living of the parties established during the marriage
• the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage
• the equitable distribution of marital property and the income or imputed income on the assets so distributed
• the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party
• any other factor which the court shall expressly find to be just and proper

You can access the link to the New York State Child and Spousal Support Calculator here.

For over two decades, Meenan & Associates has been at the forefront of advancing the rights and interests of same sex couples and their families. We remain committed to advancing these interests and maintain a well-recognized reputation for assisting individuals in all forms of family relationships.

For couples who wish to establish a legal relationship without getting married, domestic partnership is one option. New York’s Domestic Partnership Law recognizes the many different family configurations present in New York, including same sex couples. If you meet certain requirements, you and your partner can register as domestic partners and enjoy the benefits that New York extends to domestic partners. The firm has experience drafting and negotiating domestic partnership agreements where partners outline their rights and obligations to each other. We can help you chart out what you want to happen in the event that the domestic partnership is terminated.

There are important legal documents which can outline domestic partners’ wishes for each other in the event of death or illness that must be considered as domestic partnerships do not have the same legal protections and rights as marriage. A Health Care Proxy and Power of Attorney forms should be considered in the event of sickness or incapacity as a non-spouse will not have the legal right to make these decisions without these legal documents. A Will can also assist domestic partners and spouses outline their wishes for each other. A domestic partner also does not have the right to ask for spousal maintenance or equitable distribution of marital property like married spouses do.

Same-sex marriage has been legally recognized in New York since July 24, 2011, under the Marriage Equality Act. Now that sex-marriage is legal in New York and throughout the United States, same-sex couples planning on getting married should consider having a pre-nuptial agreement in place to outline the parties’ rights and responsibilities in the event of divorce or death. Pre-nuptial agreements are particularly important for same-sex couples because this is a rapidly evolving area of the law. We can help you negotiate and draft an agreement that fits your circumstances as a couple, and that addresses potential issues that may arise that are unique to same sex relationships.

In the state of New York all divorces are handled equally under the law. Once a spouse decides to separate and file for divorce it can be accomplished as a contested or uncontested divorce. All married spouses in New York are treated equally regardless of sexual orientation, or gender identity. The rights and remedies of a divorce action are applied equally to everyone.

If a marriage is not working out for one or both parties, the firm can help the couple to separate or end the marriage in an amicable and fair way. We can help you resolve issues of equitable distribution of property, spousal support/maintenance, child support, child custody and access or visitation, and parenting schedules. We can help you negotiate and draft a separation or settlement agreement that resolves these issues and represent you in court if your issues require litigation.

When a same-sex couple adopts a child jointly, each has legal standing as a parent. Alternatively, many same sex couples are raising children together, while only one party has legal standing as a parent. For some, the child is from a previous marriage. Other couples have used surrogates or sperm donors to conceive children who are biologically related to one spouse or partner. Until recently, if the couple separated or divorced, the non-biological parent did not necessarily have any right to child custody or visitation.

However, the New York State Court of Appeals expanded the definition of what it means to be a parent, especially for same-sex couples. In the matters of Brooke S.B. v. Elizabeth A.C.C. and Estrellita A. v. Jennifer L.D., the Court ruled that a caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights. The Court further stated that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the nonbiological, nonadoptive partner has standing to seek visitation and custody.

Same sex couples who want to avoid future legal problems can initiate a second parent adoption, so that both partners have legal standing. In that case, a partner who is a child’s biological parent can consent to have his or her spouse adopt the child. However, as a child can only have two legal parents, the other biological parent must give up parental rights. In the case of a sperm donor, contracts for such services often require a surrender of parental rights. However, informal agreements among acquaintances frequently leave out such provisions, giving a donor rights equal to any unmarried parent.