Frequently Asked Questions
QUESTIONS AND ANSWERS ON THIS SITE ARE FOR INFORMATION ONLY AND DO NOT CONSTITUTE LEGAL ADVICE. A LAWYER SHOULD BE CONTACTED TO ANSWER QUESTIONS REGARDING YOUR CASE.
QUESTION: Do I need my spouse’s consent to obtain a divorce?
ANSWER: No, if your spouse does not respond after being served with papers, the court may grant a divorce on default due to the failure of your spouse to answer the complaint. If your spouse does respond, you can still obtain a divorce without consent since New York State amended its law to provide no-fault divorce for all cases filed after October 12, 2010.
QUESTION: Can I obtain child support on behalf of my children if no divorce action is commenced?
ANSWER: Yes, child support can be obtained without filing for a divorce.
QUESTION: Can I obtain custody of a child when I was never married to the mother of the child?
ANSWER: Yes you can, however if an acknowledgement of paternity was not signed, you must file a petition for paternity to establish that you are in fact the father of the child. Once paternity is established, an application for visitation or custody can be made to the court.
QUESTION: Can both spouses use the same lawyer to represent them in a divorce proceeding?
ANSWER: No. Lawyers are prohibited from representing both a husband and wife in an action for divorce. A lawyer may represent only one party. If your spouse has served you with papers, you must obtain your own independent attorney. If you do not have representation, your rights will not be protected.
QUESTION: Can my spouse be forced to help pay for the cost of college for our children?
ANSWER: Yes. Application must be made to the Court to compel payment if no agreement can be made between the spouses or their attorneys. The Court will usually award an amount on a pro-rata basis depending on the income of the parties. The Court may also place a “cap” on the amount paid by both spouses depending on the income of the litigants and the cost of the college the child is attending.
QUESTION: Can I obtain an increase of my child support payments when my spouse is earning more money even though my agreement or divorce judgment states otherwise?
ANSWER: That depends on the facts of the case and how your payment is being made. If it is made through the court collection system, you may have an automatic right of review after a set period of time. However, unless the stipulation provides for an increase, if payment is made directly, you must prove your case pursuant to the standards set forth in case law so long as the stipulation was executed (signed) prior to July 15, 2010.
If your stipulation was signed after July 15, 2010 or your award of child support was made after a trial or hearing without your consent or an agreement, you may go back to court to seek an upward or downward modification of child support if more than three years have elapsed since the time of the order or agreement or if the income of either parent changes by more than 15%.
QUESTION: Am I automatically excluded from a share of property in my spouse’s name only?
ANSWER: No. You are not automatically excluded. What you will receive will depend on whether the property is classified marital or separate as well as other factors used by the Court to determine equitable distribution.