Divorce & Family LawProudly Serving Clients Throughout WNY
Family and Divorce Lawyer
Serving Buffalo, Cheektowaga, NY & Beyond
Divorce can be one of the most stressful changes that can occur in life. And if there are children involved, divorce can become even more complicated. The matters of visitation, child custody and support are additional emotionally charged matters that can put stress on the divorce and family.
Attorney Joseph-Anthony Muscato has over 20 years of experience in assisting families through the transitions within the family court system. His expertise and years of experience are extremely valuable whether the divorce is contested or amicable.
With various situations and legalities to attend to, divorce, child custody and support can become difficult to work through alone. To protect your rights, assets, and your children, it’s best to turn to an experienced divorce and family attorney. At Muscato & Shatkin LLP, we are proud to be that trusted divorce attorney. For the past 15 years, we’ve handled cases throughout the Buffalo, West Seneca, Cheektowaga, Hamburg, Orchard Park, Lancaster, and Tonawanda, NY area. Contact our office today to schedule a consultation and ensure that you have proper representation from our divorce lawyer and family attorney to best suit your family’s needs.
We Help You Get Through the Divorce Process
Though the divorce process can be stressful, luckily our divorce and family attorney is here to guide you step-by-step, conveniently answering any questions you may have along the way.
For example, most people don’t know that under divorce laws, marital assets are divided on an equitable basis regardless of which party’s conduct caused the divorce. It is also a common misconception that spouses must be separated for at least one year before they can become divorced. While the two parties can be separated by either a Judgment of Legal Separation or a written separation agreement, in most cases, clients can get divorced immediately and there is no requirement for being separated for a year.
Some parties of the divorce may think the other should pay for their attorney, especially if it’s the spouse that didn’t file. Each spouse retains their own attorney under terms agreed upon between the attorney and client. There are situations in which there is a gross disparity in the income of the parties and the non-monied spouse has the right to submit an application to the court requesting an award of counsel fees from the other spouse. However, if both parties have relatively even incomes, each party would pay their own counsel fees.
To file for divorce in New York, you must satisfy at least one of the following residency requirements:
- The marriage ceremony was performed in New York State and either spouse was a resident of the state at the time of the commencement of the action and resided continuously in New York for one year immediately before the action began.
- The couple lived as spouses in New York and either one is a resident thereof and resided in New York for a continuous period of one year immediately before the commencement of the action.
- The grounds for divorce occurred in New York and either party is a resident thereof and lived in this state for a continuous period of one year before the commencement of the action.
- The grounds for divorce occurred in New York and both parties are New York residents at the time the action is commenced.
- If you and your spouse were married outside of New York and never lived together as spouses in this state and the grounds for divorce did not occur in this state, either you or your spouse must presently be a resident of New York and have resided continuously in the state for at least two years before bringing this case.
When a child or children are involved in a family court or divorce, it can be hard to understand exactly what happens within the family. How child support is determined, who pays the child support, and child custody can all be complicated and difficult to navigate.
The Child Support Standards Act was founded to have consistency concerning the amounts of child support awarded in each case. The courts will follow the guidelines wherein child support consists of a percentage of the non-custodial parent’s gross income minus the deduction for Federal Insurance Contributions Act (FICA) only. The percentage of the non-custodial parent’s gross income differs depending on the number of children, typically:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- A minimum of 35% for five or more children
Child support can be modified either upwardly or downwardly based upon an appropriate change in circumstances following the granting of a child support order. Oftentimes, increases are granted when the spouse that pays the child support has a substantial increase in income and the current amount of child support being paid is now insufficient. Conversely, if the spouse that pays the child support is laid off or loses their employment for a reason that is no fault of their own, they can be entitled to a reduction in child support. The court calculates the basic child support obligation based on consideration of the following factors:
- The financial resources of the custodial and non-custodial parent and those of the child
- The physical and emotional health of the child and their special needs and aptitudes
- The standard of living the child would have enjoyed had the marriage or household not been dissolved
- The tax consequences to the parties
- The non-monetary contributions that the parents will make toward the care and well-being of the child
- The educational needs of either parent
- A determination that the gross income of one parent is substantially less than the other parent’s gross income
- The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income
- Any other factors the court determines are relevant in each case
You are required to pay child support until your child reaches the age of 21. However, support may terminate sooner if your child becomes emancipated by any of the following events:
- Death of the child
- Marriage of the child
- The child obtains employment and is capable of being self-sufficient
- The child joins the military service
- The child leaves the home of the custodial parent
While there is no one set age at which a child can decide which parent they wish to live with, most courts consider that around the age of 14 the child is old enough, mature enough, and intelligent enough to decide where they wish to reside.
Joint Custody vs Sole Custody
A lot of people are under the misconception that joint custody means that the time with the child is split 50% between two parties. However, this is not the case. Joint custody allows for both parties to walk away happy with the fact that they didn’t abandon the custody of their child or children.
There are cases where a spouse is given sole custody of the child or children but the other spouse, in addition to their visitation rights, is granted other rights such as equal access to school, medical, and other records of the children involved, the right to be in attendance at the child’s extracurricular activities, school functions, parent/teacher conferences, and likewise access that, in effect, give the parent with no custody the same rights as they would have as a joint custodian.
It's important to know that in the state of New York, courts cannot award joint custody. Joint custody can only be done by agreement between the parties.
Important Legal Terms to Know When Filing for Divorce
With so many terms surrounding the divorce and family law subject, it can get confusing fast. Here are some legal terms that you may need to know when going through the divorce process:
- Filing Party Title: Plaintiff
This is the spouse who initiated the divorce by filing the required paperwork with the court.
- Non-filing Party: Defendant
This is the spouse who does not initiate the divorce.
- Court Name: Supreme Court of the State of New York, ______ County
The proper name of the court in which a divorce is filed in New York. Each jurisdictional court typically has a domestic relation or a family law department or division.
- Child Support Enforcement Website: http://newyorkchildsupport.com/
The state-run office is devoted to enforcing existing child support orders and collecting any past due to child support.
- Document Introduction: In Re the Marriage of
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouses’ names.
- Initial Divorce Document: Verified Complaint for Divorce
The title and name of the legal document that will initiate the New York divorce process. The filing spouse is also required to provide the non-filing spouse with a copy of this document.
- Final Divorce Document: Judgment of Divorce
The title and name of the legal document that will finalize the New York divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
- Clerk’s Office Name: Office of the Clerk of the County Court
The office of the clerk that will facilitate the divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
- Legal Separation
The grounds for legal separation (separation from bed and board) in New York are: (1) adultery; (2) abandonment; (3) imprisonment for 3 or more consecutive years; (4) neglect of and failure to provide support for a wife; and (5) cruel and inhuman treatment. If only one spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to one year if: (1) the spouses were married in New York and either spouse is still a resident; (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for legal separation arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231.]
- Property Distribution: Equitable Distribution
The applicable New York law that dictates how property and debt are to be divided upon divorce.
Temporary Alimony, Rehabilitative Alimony, Permanent Alimony & Reimbursement Alimony
Temporary alimony, which a judge can award when a couple has separated but has not divorced yet, allows the receiving spouse to maintain a certain standard of living while adjusting to the divorce. This can be awarded in a situation where a husband decides that he is going to move out of the marital home and the wife will need funds available to pay the home’s expenses, like mortgage, utilities, etc. Temporary alimony would allow the wife to carry on in lieu of the situation.
With rehabilitative alimony, the divorced spouse is allowed a short period of time to rehabilitate themselves financially. Rehabilitative alimony may be awarded in a situation where once the divorce is finalized, a spouse needs a certain amount of time to gain employment in a career-oriented position.
While permanent alimony is very rarely awarded, a couple can still negotiate and agree on an award of permanent alimony. The same factors controlling an award of long-term rehabilitative alimony applies to permanent alimony, such as the recipient ex-spouse must have no realistic chance of employment and the marriage must have been over a long period of time.
As the name implies, reimbursement alimony reimburses an ex-spouse for some expense or expenses that they have paid on behalf of the other ex-spouse. This type of alimony is typically granted in situations where one spouse supports the other during school while they receive a degree. The likelihood of reimbursement alimony lessens the greater the time between the receiving of the degree and the divorce. Should the divorce happen several years later, it is unlikely that the spouse receives reimbursement alimony. However, the spouse that supported the degree may still be able to receive part of the value of the degree. Reimbursement alimony can be a lump sum or paid out over a specific period of time. A lump sum settlement is a large, fixed payment comprising all of the alimony.
There are also spousal support laws that prevent the divorced spouse from suffering from a decrease in their standard of living. In some cases, one spouse has been out of the workforce for so long that it would be difficult for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had when they were married. Spousal support, like alimony, entails payments or transfers of assets from one spouse to another after a divorce, so one spouse isn’t left with nothing.
Divorce & Family Law Case for the Military
Military divorces are different from civilian divorces. While the grounds for a military divorce in New York are the same as a civilian divorce, New York military divorces create several unique issues, so different state and federal laws and rules apply.
Military Protection from New York Divorce Proceedings
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local New York court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter. These are laws that were set up to protect the active-duty member from being divorced or being held in default from failing to respond to a divorce action without knowing it.
Serving an Active Military Spouse
For a New York court to have jurisdiction over the military member, the active-duty spouse must be personally served with a summons and a copy of the divorce action. In some cases, the active-duty spouse may not have to serve as long as they sign and file a waiver affidavit that acknowledges the divorce action.
Dividing the Property
The federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) which governs how military retirement benefits are calculated and divided upon divorce. This act authorizes a direct payment of a portion of the military retiree’s pay to their former spouse. However, the federal law will not divide or distribute any of the military member’s retirement to the former spouse unless they have been married for 10 years or longer while the member has been active in the military.
Child Support and Spousal Support
In New York, both child support and spousal/alimony awards may not exceed 60% of a military member’s pay and allowances. The usual New York child support guidelines are used to determine the proper amount of child support that should be paid.