Common Myths About NY Divorce and Child Custody

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Many people think that it is impossible to get a divorce in New York if her/his spouse will not sign divorce papers. Similarly it is commonly believed that in a divorce, retirement benefits belong exclusively to the spouse in whose name the benefits are listed. The list of myths, misconceptions, and misunderstandings concerning divorce and child custody goes on and on. Here are some of the more common ones:

Divorce myths

1. “I cannot get a divorce in NY because my spouse refuses to sign the divorce papers.”

Not true. The Judgment of Divorce is granted by a Supreme Court Judge; a spouse can file an action for divorce in the Supreme Court in NY without the other’s consent.  

2. “If we get divorced or separated in NY,  my spouse will keep his/her retirement and pension benefits because the benefits are is in his/her name; I am not entitled to any money from my spouse’s pension after the divorce.”

Not true. In NY, there is a presumption that as long as assets (including the pension) are acquired during the marriage, regardless in whose name, they are “marital assets” which is distributed equitably between both spouses upon divorce.

3. “My spouse is obligated to provide health insurance for me after we are divorced in NY.”

Not true. Pursuant to the NY Domestic Relations Law, one spouse is no longer obligated to carry health insurance for the other spouse after the judgment of divorce is granted.

4. “If we get divorced in NY, I keep all of my pension because it is in my name and I earned it.”

Not true. In NY, as long as the pension is acquired during the marriage, it is a marital asset, regardless in whose name it is acquired. Its vale will be distributed equitably between both spouses upon divorce.

5. “If we separate, my common law spouse and I will divide our assets and and he/she will pay me alimony and support.”

Not true. The law in NY State does not recognize common law marriages. 

6. “If we get divorced, I get to keep my business even if it was established during our marriage.”

Not true. In NY, as long as assets are acquired during the marriage, they are presumed to be marital assets, regardless in whose name they are acquired. Its value will be distributed equitably between both spouses upon divorce.  

7. “If we separate or divorce in NY, my husband must pay me spousal support (alimony); a wife never pays alimony to a husband.”

Not true. The law is gender blind. There is a formula set forth in the NY Domestic relations Law which sets forth the calculations for temporary awards of maintenance based upon each spouse’s income. The statute also sets forth the criteria that the NY Courts must consider before awarding spousal support and maintenance to the less affluent spouse after the divorce is granted in NY.  

8. "NY divorce court will award me money to compensate me for my spouse's bad behavior and because he/she cheated on me."

 Not true. Fault is not a factor considered by the court for equitable distribution purposes.

9. "If we get divorced, I will lose the right to our home because the deed is in my spouse’s name."

Not true. Pursuant to the Domestic Relations Law of New York, the assets and property acquired by either spouse after the date of the marriage are presumed to be marital assets which will be divided equitably between both spouses when they get divorced.

10. "My spouse and I have to wait a year before we can get a divorce in NY."

Not true.  The divorce law in NY does not require you to wait one year before you can get divorced. Since October 2010, NY became a “no fault divorce state” and before that, you could get divorced based upon fault grounds [abandonment, cruel and inhuman treatment, adultery, etc.]

Child support myths

1. “Child support payments stop when my child is 18 years old.”

 Not true. The NY Child Support Standards Act provides that children are entitled to be supported until the age of 21, unless they are emancipated before their 21st Birthday.

2. “I get a tax deduction on my income tax returns for the child support payments I pay to my ex-spouse."  Not true. Pursuant to the Internal Revenue Code, child support payments are not tax deductible for the payor and they are not taxable as income to the payee.

Child custody myths

1. “I don’t have to allow my spouse to visit with our children after we get divorced in NY.”

Not true. In NY the law recognizes that it is in the best interest of children to continue to visit with the non-custodial parent.

2. “If my spouse won’t pay me child support, I don’t have to let him/her see the children.”

In NY the law recognizes that it is in the children’s best interests to have consistent visits with the non-custodial parent, regardless of whether or not he/she pays child support to the custodial parent. There is no quid pro quo.

3. “Our children are too young to have overnight visits with my spouse.”

Not true. The law does not provide for any particular age when a child can have overnight visits with the non-custodial parent. Both parents are presumed to be capable of caring for their children, unless proven otherwise.  

4. “Mothers always get custody of children when parents get divorced.”

Not true. The courts in NY have to consider the best interests of the children in custody matters.

Get the truthful and comprehensive answers about divorce and custody issues

The easiest way to find the truth is to contact a divorce attorney who knows the ropes in New York and who can concisely and clearly explain your legal rights in the area of matrimonial and family law. To find out how the law applies to your particular case, call NY divorce attorney Ingrid Gherman’s law office today for a consultation (212) 941-0767 or send the on-line form.