Q: Apply for spousal support in Family Court while married or wait 3 more months to file divorce? NYS
My husband and I cohabited for 7 years and were married 4 months ago. He recently left abruptly, asked for space, and gave up our rental without informing me while I was staying with family. He also took my jewelry, and I still had belongings in the house. There has been no contact since.
He earns a six-figure salary, and I was a homemaker caring for his young son while also a full-time student. During our relationship, he was very controlling and didn't allow me access to finances (no shared accounts, no assets, limited my ability to speak to the landlord). I now have no income, savings, or place to live and am staying with friends while looking for work.
Would it be better to file for spousal support in Family Court now since we are married, or wait three months to file for divorce and request temporary maintenance? Will the court consider our 7-year cohabitation, during which I was financially dependent on him, in addition to the short marriage when determining support?
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A:
This series of legal questions are best answered by an attorney after a detailed discussion of more facts of this asker's case. We really cannot conclude with concrete and effective legal advice as to which court to file for something based on a man's departing a home, taking jewelry and earning a six figure salary.
Family court does have jurisdiction under an "F-Docket" over married couples in cases of spousal support. There is a concurrent jurisdiction between a divorce court and family court as to that issue. However, as far as legal strategy is concerned, it can be a huge mistake filing for spousal support on the eve of a divorce because the divorce action can cause a transfer of the spousal support case to the divorce court causing a waste of time and money. It's a delay strategy baked into the statute (CPLR §602).
The other issue wrapped up in this question is the DRL §170(7) requirement for six months to pass for there to be a claim of an irretrievable break down of the marriage. This is New York's "no fault" ground enacted in 2010 making divorce easier in New York. The marriage presented by this asker is only four months old. What to do? We do not know. Will the husband file at the six month mark or will the asker file. Again, we would need to get a detailed factual narrative to best advise which at this point we cannot.
Seven years of cohabitation does not count at all as New York does not recognize common law marriages and therefore will not divide property based on equitable distribution principles. The cohabitation was wasted time as far as recovery of assets is concerned. Working men prefer cohabitation for obvious reasons. A written contract in the form of a buy-sell agreement would be needed to extract assets gained from the informal union.
Spousal support in family court is a numbers game. The two incomes are added together and calculated through a labyrinthine formula to get a support amount. The duration of the union is irrelevant.
The asker has to see an attorney.
A: We cannot give legal advice in this forum. However, please note that in a divorce proceeding in NYS, the court would consider pre-marital time together essentially as a husband and wife leading up directly into marriage as part of the calculated time period for spousal support in a divorce proceeding. Seek local matrimonial counsel for more information and actual advice.
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