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New York Divorce Questions & Answers
2 Answers | Asked in Divorce for New York on
Q: The house and separate property of land is in my wife's name only. She's threatening a divorce and to take it all.

I had bad credit when we purchased the house so it was only put in her name. When we bought the property of land later collectors were trying to take a judgment out on me because I went to a debt consolidation and they said not to pay anyone so we could settle for less on what was owed basically... Read more »

Howard E. Knispel
Howard E. Knispel answered on Jun 2, 2020

It does not matter whose nmame os on the deed for property. The issue is when was the property purchased, and possibly, where did the money come from. If the property was purchased during the marriage then it is presumed to be marital. If the money to purchase was from pre-marital assets she may be... Read more »

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1 Answer | Asked in Divorce, Family Law and Domestic Violence for New York on
Q: If an individual is being financially abused by their spouse, is there legal action they can take against them?

The individual being financially abused is currently abusing illicit substances, does not have a job, and does not have access to their finances. The individual has children with their abuser. There is currently no physical or sexual abuse.

George E. Patsis
George E. Patsis answered on May 30, 2020

You can file a petition for spousal maintenance and child support.

4 Answers | Asked in Divorce for New York on
Q: What happens a husband takes Out 401k funds prior to divorce being filed (at age 60-NY)

What happens if my husband and I separate and he purposely Files for divorce at the age of 60 and withdraws his 401k funds in case I later file for divorce?

Michael J Stachowski
Michael J Stachowski answered on May 29, 2020

Nothing substantial. He must account for the funds. Under eligible distribution you are entitled to a share that was acquired during the marriage. Majauskas v majauskas sets the formula. The months of employment over the months of the marriage x 1/2. That’s the marital share if it was all... Read more »

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4 Answers | Asked in Child Custody, Child Support, Divorce and Family Law for New York on
Q: Can you modify child support with an active Supreme Court divorce/custody case when you lose your job?

I've been paying child support and when I lost my job I paid what I could from my savings until depletion. I fell into arrears and took out a loan to catch up with child support but not sure I can keep doing this without income. Can I modify child support while my case is still active in... Read more »

Nina Mironenko
Nina Mironenko answered on May 29, 2020

Yes you can. Your attorney should be able to help you by filing a motion, or ask for a conference with the judge. You need to show inability to pay and that it is not wilful - meaning you are trying to find and take any kind of job you can right now in order to support your children.

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3 Answers | Asked in Divorce for New York on
Q: What happens if husband withdraws 401k money before wife files for divorce in NY?

What happens if a husband knows wife is going to ask for divorce so he files retirement and gets 401k at age 60 to get funds before divorce is filed

Nina Mironenko
Nina Mironenko answered on May 28, 2020

"Wasting" a marital asset in contemplation of divorce brings the asset back into equitable distribution in total. The husband can be held liable for any penalties/taxes due to him withdrawing early.

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2 Answers | Asked in Divorce for New York on
Q: Maintenance in NY state

Judge requested more information for our divorce filing. Married in 07, lived apart since 09 but never filed for divorce until now (unfortunately after the 2016 maintenance law enactment). She signed a waiver of spousal maintenance. I already pay support. I know that pre-divorce seperate living... Read more »

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on May 28, 2020

What should be done is the spouse who is waiving support should have an affidavit that says that they are self-supporting and not requesting spousal support. If that spouse has an substantial income, then include that information in the affidavit.

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2 Answers | Asked in Divorce for New York on
Q: After divorce was final found out ex bought a house for $450k cash he didn’t disclose on SNE. Do I have any recourse?
Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on May 27, 2020

Depends on what your separation agreement says. Most probably you can reopen the case if you have some proof. See your divorce lawyer or consult another attorney but bring the Judgment of Divorce, the separation agreement and ALL the SNW's.

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1 Answer | Asked in Divorce for New York on
Q: I am going to get a divorce. I am scared my husband will try to drag it out. Can that happen? When can I move out?

I need to divorce quickly for my happiness and mental health. I'm scared my husband will try to make me miserable or trap me. What are the typical costs for divorce?

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on May 21, 2020

Unfortunately, depending on the attorney your husband gets he may be able to drag out the divorce. The courts try to have divorce cases ready for trial in 6 months if the case can't be settled, however, it doesn't take much to drag the case beyond 6 months. In regards to moving out, if... Read more »

2 Answers | Asked in Divorce for New York on
Q: I submitted all my NY uncontested divorce forms about 2 months ago. Just received a notice stating they needed more.

They are requesting:

"1) Maintenance. Please provide plaintiffs affidavit recitinting parties respective ages, health, employment and income so that the court Has some basis to make its finding that the maintenance waiver provisions of the separation agreement were fair reasonable at... Read more »

Howard E. Knispel
Howard E. Knispel answered on May 20, 2020

This is why trying to submit legal documents to the court without a lawyer is foolish. There are many forms required, some mayt be duplicative. Clerks will reject papers that do not contain all the required forms with all of the required language. Contact a lawyer and have the lawyer submit the... Read more »

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1 Answer | Asked in Divorce for New York on
Q: I filed on my own OSC NY failure comply w Divorce agrmt, what happens next? he is working. $ was owed from retirement.
Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on May 18, 2020

Once the OSC is filed, it has to go to a judge to be signed and an order for how and when service is to be made on you ex. and what the return date of the OSC is. Once the OSC is signed (it will be faxed to you or you will be notified to conform a copy by phone or to pick it up) you will have to... Read more »

2 Answers | Asked in Child Custody, Child Support, Divorce and Family Law for New York on
Q: There was a contested divorce over ten years ago which led to an agreed settlement, giving the father physical custody.

On paper, there is legal joint custody with visitation for the mother. However, the dad often decides on his own and my input was seldom heard. The agreed child schedule has been half the week, every week. Child is with mom every Wednesday to Saturday, with dad every Saturday night to Wednesday.... Read more »

Nina Mironenko
Nina Mironenko answered on May 7, 2020

The threshold for having a hearing for a change of custody is a "change of circumstances" since the original order/stipulation. If you can prove that there has been a change in the way the father supervises the child, etc. and that it would be in the best interests of your daughter to... Read more »

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2 Answers | Asked in Divorce for New York on
Q: Me and my wife are getting divorced. The house is in both our names. The loan is only in my name. Can she take the house
George E. Patsis
George E. Patsis answered on Apr 29, 2020

This is a difficult question to answer without more information. New York is an Equitable Distribution state. Equitable Distribution does not require that property be distributed equally, but that it be distributed fairly. The Court will consider the contributions made by both parties to the... Read more »

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1 Answer | Asked in Divorce for New York on
Q: Purchase a house with my boyfriend before we got married how does that go once I get a divorce unfortunately dk

We have a daughter together and we are newly weds sad to say just not fit.. Ready to say goodbye.

George E. Patsis
George E. Patsis answered on Apr 22, 2020

Often, after the conclusion of a divorce, the marital home is listed for sale. Generally, the proceeds from the sale of a marital home are applied to the mortgage and other marital debts, the remaining balance is often divided between the parties.

3 Answers | Asked in Divorce for New York on
Q: Can the mediator that mediated our divorce property settlement agreement later represent my spouse to file for our divom
Michael J Stachowski
Michael J Stachowski answered on Apr 21, 2020

That Is not proper. The mediator should be a neutral. However if its a faultless divorce with a fair agreement it may be acceptable, Even though it may be acceptable it has the appearance of impropriety. The leaves a view that the mediator was actually the wife's advocate. You should take... Read more »

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2 Answers | Asked in Divorce for New York on
Q: UD: My son is 19; do I have to create a support agreement? I don't want anything from my spouse.. and he isn't a minor.

Uncontested Divorce.. trying to figure out what documents actually need to be turned in. The divorce is amicable. My son lives with me, the father, and I am not looking for support. He is actually working a part time job and is well taken care of here. . don't want support payments from my ex... Read more »

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Apr 21, 2020

In the divorce papers you have to calculate what the support would be and then indicate that you are deviating from that amount as the child is working.

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3 Answers | Asked in Divorce for New York on
Q: My ex wife lied to the supreme Court, she stated my bi- weekly paycheck of $1000 was a weekly paycheck.

They calculated my child support on that number and not the actual amount. I literally owe double what it should be. Can I fix this?

David P. Badanes
David P. Badanes answered on Apr 20, 2020

Yes, you can fix this. Your child support should be based on the income as reflected on your W2 statement. You should hire an attorney to fix this for you.

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2 Answers | Asked in Divorce, Estate Planning, Probate and Tax Law for New York on
Q: My father passed away last year and he is married to his wife who iam not in great terms with because of her infidelity.

Can I file his taxes or should I leave it alone? Is it legal for me to do it since he is married. He never gave consent for any specific individual to file taxes as we were in the process of doing so while he was diagnosed with cancer. Rapid divorce was not as rapid as his diagnosis unfortunately... Read more »

Michael David Siegel
Michael David Siegel answered on Apr 20, 2020

Only his estate representative can file his taxes. The wife is due the first $50,000 of his estate unless he had a will, so unless the refund is more and there are other assets, there is no need to do it.

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2 Answers | Asked in Divorce and Family Law for New York on
Q: I've been trying to get divorced for over a year can't afford a lawyer. No one returning my msgs. What to do?
Howard E. Knispel
Howard E. Knispel answered on Apr 20, 2020

You say you can not afford a lawyer and that none are returning your calls. Maybe you are answering the question yourself. Lawyers are private individuals who expect to get paid for their services. A divorce can cost anywhere from a few thousand dollars to tens of thousands of dollars. Everything... Read more »

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3 Answers | Asked in Divorce for New York on
Q: Do I need to file for a paternity test on a child born outside my marriage when I am filing for a divorce?

I am legally married to someone that has given birth to a child by another man. I share legal joint custody of my daughter with her. The supposed father of the other child claimed that he has signed a birth certificate saying he is the father. I have been told by other lawyers that because I am... Read more »

Howard E. Knispel
Howard E. Knispel answered on Apr 18, 2020

There is a legal presumption, that is rebuttable, that a child born to a married woman is the child of her husband. If this is an uncontested divorce, having both parties stipulate and put into a Judgment of divorce, that the husband is not the father, is sufficient. If this is contested, then this... Read more »

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3 Answers | Asked in Divorce for New York on
Q: How much does a divorce lawyer cost?
Howard E. Knispel
Howard E. Knispel answered on Apr 17, 2020

This is an impossible question to answer without knowing all the facts. Each attorney is independent and charge their own fees. Factors range from the complexity of the matter to the location. An uncontested divorce, where both parties are in total agreement from the beginning, is much less... Read more »

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