Frequently Asked Questions

The process server has been unable to locate my spouse and therefore cannot serve him with the initial pleadings in my divorce action. What can be done?
Your attorney can make an application to the Court seeking permission for your spouse to be served via alternative service. This application cannot be submitted to the Court until such time as a good faith effort to serve your spouse via personal service has been made. If a good faith effort to serve your spouse has been made and they still cannot be served, your attorney can request permission from the Court to seek to have your spouse served by notification in the newspaper, by serving the papers on a relative or by any other means that are likely to provide him or her with ample notification of the lawsuit.

How are the initial divorce documents (Summons and Complaint or Summons With notice) served upon my spouse?
Under New York Law, the defendant in a divorce action must be personally served with the initial divorce papers. This means that a process server must physically provide the documents to your spouse. They cannot be left at their residence, they cannot be mailed and they cannot be given to someone else on behalf of your spouse.

My former spouse and I signed a stipulation of settlement a few years ago requiring me to pay her maintenance (alimony). I am struggling financially at the present time and want to go back to court to have my maintenance payments lowered or terminated altogether. Can I do this?
You can seek to have your maintenance payments lowered or terminated, however it is extremely difficult to modify a maintenance obligation contained in an agreement of the parties. The Court imposes a standard which requires you to demonstrate that your continued payment of maintenance would cause you extreme financial hardship.

What is a prenuptial agreement?
A prenuptial agreement is a contract setting forth the financial rights and obligations between two parties in contemplation of marriage. A couple may opt to execute a prenuptial agreement to protect their interests in the event of divorce, i.e. where one party may have substantial assets earned prior to the marriage; either or both parties have children from prior relationships. A prenuptial agreement can also be used for estate planning purposes. The prenuptial agreement must be in writing and signed by both parties and acknowledged or proven in the manner required to entitle a deed to be recorded. It may be amended or revoked after marriage only by a written agreement signed by the parties.

A prenuptial agreement may include provisions for the ownership, division or distribution of separate or marital property, provisions for the amount and duration of maintenance or other terms and conditions of marriage relationship, provided that such terms and conditions were fair and reasonable at the time of agreement and are not unconscionable at the time of final judgment. Provisions for the custody, care, education and maintenance of any child of the parties may also be included.

What date of valuation does a Court typically use? Is it the date of the divorce trial or the date the divorce action was commenced?
It depends on whether the asset is an active asset or a passive asset.

An active asset such as a business or a pension which is the result of one of the spouse’s efforts is generally valued as of the commencement date of the divorce action.

On the other hand, a passive asset such as a house or a stock account in which deposits are not made subsequent to the commencement date are typically valued as close to the trial date as possible.

My child has gotten married. She is 19 years old. Am I still obligated to make child support payments on her behalf?
No. A child is considered to be emancipated upon his or her marriage.

My child initially entered the military and my child support payments were terminated as a result. My child is now 20 years old and has left the military. He has returned to live with his mother. Am I responsible for recommencing child support payments?
Yes. If the mother seeks such payments, the fact that the child was initially emancipated as a result of his or her entry into the military is of no consequence once he or she leaves the military prior to reaching the age of 21. Of course, the child could conceivably become emancipated after leaving the military by getting married or obtaining full time employment.

My son is 18 years old and has entered the military. Do I need to continue paying child support on his behalf?
No. A child who enters the military is deemed to be emancipated and you are no longer obligated to make child support payments on his behalf.

I retained my attorney and he made substantial efforts to settle my divorce case. My spouse was extremely difficult and we were unable to obtain a settlement. I have now commenced a divorce action against my spouse. Can I seek to recoup some or all of the money I expended on counsel fees prior to the commencement of the divorce action?
Yes. The Court allows you to seek an award of counsel fees for sums expended prior to the commencement of the divorce action.

Do I need an attorney in order to get divorced?
Technically, you do not. You are free to represent yourself if you wish. However, if your spouse has an attorney, you will be at a severe disadvantage in the litigation. In addition, a divorce action involves complex issues of custody, spousal support, child support, equitable distribution, enhanced earnings and custody which would make it extremely difficult for you to resolve on your own.

Can my spouse and I use the same attorney in our divorce action?
Absolutely not. One attorney cannot represent both spouses. Each spouse must have their own attorney, or a spouse is allowed to represent themselves if they so desire.

Should I go to mediation to resolve my divorce action rather than retaining an attorney?
It is the experience of Mr. Marnell that mediation rarely is successful. When you retain an attorney, that attorney is pledged to zealously fight for your rights and to protect your legal interests. The goal of a mediator, on the other hand, is merely to obtain an agreement. Not necessarily a good agreement, but one that the mediator thinks is fair. Thus, the mediator will often try to talk one spouse out of sticking to a position that the spouse is adamant about, not because it is best for that particular spouse but solely due to the fact that giving in on that issue will help foster an agreement.

What is joint custody?
Joint custody is a form of custody in which the parents agree to jointly discuss all major decisions pertaining to their children, including but not limited to education, health and religion.

The child or children still primarily resides with one of the parents, but under joint custody, all major decisions are made jointly, rather than by only one of the parents.

Can I remain on my spouse’s medical insurance after our divorce?
In nearly all cases, the answer is no. Once you are divorced, you are no longer a family member of your spouse and you therefore cannot remain covered under a family plan.

However, you will be eligible to receive medical benefits pursuant to COBRA. Under a recently enacted law, both spouses in a divorce action are now required to sign a document stating that they are aware that they will no longer be eligible to receive medical benefits from the other spouse's insurance policy subsequent to the divorce.

What is a statement of net worth?
A net worth statement is a document that is filled out by both spouses in a divorce action. It contains a list of each spouse’s expenses, assets and liabilities. It also contains each parties’ income. Verification of such income such as a pay stub and/or a tax return is typically annexed to the statement of net worth.

What is a QDRO?
A QDRO is a Qualified Domestic Relations Order. Such an Order is signed by the Court and is necessary in order to distribute and divide certain pension and retirement benefits obtained by one spouse from the other pursuant to a divorce action.

Thus, in order for such pension rights to ultimately be distributed from one spouse to the other, a Qualified Domestic Relations Order or a QDRO may be necessary. A Qualified Domestic Relations Order was established by the Retirement Equity Act of 1994 and is a means to accomplish the distribution of certain pension plans. Practically speaking, a QDRO is necessary whenever the plan to be distributed is qualified. A plan is deemed qualified if it meets certain requirements established in the United States Internal Revenue Code. Once a plan is considered to be qualified, both the plan as well as the participants under the plan are afforded preferential tax treatment. Government retirement plans on the other hand, are not subject to the rules of a Qualified Domestic Relations Order.

Although 401K plans and most defined benefits pension plans do require QDRO’s in order to be divided, IRA accounts do not require a QDRO and can simply be rolled over by one spouse into a retirement plan possessed by the other spouse.

How long does it take for the Court to sign my divorce judgment once all of the necessary documents have been filed?
Presuming that all of the paperwork is correct, Nassau and Suffolk County generally will take approximately 4 to 6 months to sign the judgment of divorce. Of course, there are circumstances in which the judgment will be signed much quicker than that.

What formality is required in order to make a Marital Agreement valid and Enforceable?
Agreements must be in writing; signed by both parties in the same form as required of a deed. The agreements must be notarized. The agreement or a memorandum of the agreement must then be filed in the office of the County Clerk.

What types of Matrimonial (or Marital) Agreements are there?
Matrimonial Agreements include Pre-Nuptial and Post-Nuptial Agreements, Separation Agreements and Settlement Agreements made by the two spouses which are commonly known as Stipulations of Settlement. Spouses can sign such agreements prior to as well as during the marriage.

Can the Court reduce or eliminate my arrears of child support?
Any arrears which have accrued under a judgment or order prior to the making of an application for modification are not subject to modification or annulment. If successful, the modification will be retroactive to the date of your application or petition.

Are common law marriages valid in New York?
No they are not. However, New York will recognize a common law marriage that is valid in another state.

My wife makes lots of money and I am a stay at home dad. Can my spouse be directed to pay me maintenance?
Yes. Maintenance is gender neutral and if you require support in order to become self supporting based upon the lifestyle established during the marriage, you may be entitled to receive maintenance from your spouse.

Do I have a right to see my spouse's financial records?
In New York, both spouses have the right to complete Financial Disclosure as to the other spouse's income, assets and expenses before the case can proceed to trial or amicable settlement negotiations. You also have the right to depose the other spouse (question them under oath before a court reporter regarding his or her finances) as well as obtain appraisals of real property, personal property, licenses, degrees and business assets. You may also serve interrogatories which are written questions pertaining to finances which must be answered in writing by the other spouse.

What happens after my spouse is served with the summons?
If you start the divorce action by filing and then serving a summons with Notice without a complaint, your spouse has twenty days to serve a "notice of appearance" upon you (or your divorce attorney, if represented by an attorney). This means that your spouse appears in the divorce action and you have twenty days to serve your verified complaint upon your spouse.

If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his or her answer to your complaint. The Answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.

What are a Summons and Complaint?
A Summons is a legal document which gives notice to your spouse (the Defendant) that an action was started.

The Complaint is a legal document in the action for divorce, separation, or annulment. It contains the specific details and reasons for the relief requested in the Summons, including your grounds for divorce, separation or annulment; it also contains other requests such as child custody, visitation, child support and maintenance, equitable distribution of marital property, health insurance, life insurance, payment of legal fees and experts' fees, exclusive possession of the marital residence, orders of protection, and the like.

How do you start an action for divorce or separation in New York?
An action for divorce, separation or annulment is started by filing a Summons With Notice or a Summons and Complaint in the Supreme Court of the State of New York. Thereafter, the Summons must be served personally on your spouse and an affidavit of service must be filed with the County Clerk's Office within 120 days after the Summons is served.

Will my former spouse be obligated to pay child support on behalf of our son until he reaches the age of 22 if our son ultimately attends college?
Child support in New York State ends at the age of 21. However, the parties are free to stipulate to child support ending at any age they wish. Although the parties' stipulation must be approved by the Court, it is routine and customary for the parties to agree that child support will terminate at the age of 22 if the child is a full time matriculating college student.

I am getting a divorce and I am pregnant. Will my spouse have to pay child support on behalf of our unborn child?
Once the child is actually born, your spouse will be required to pay child support so long as it is established that your spouse is the father and as long as you ultimately obtain custody of the child.

I have heard that child support can be paid in several different ways. What are they?
The most simplistic means of paying child support is by one of the parents making direct payments to the other. Thus, one parent simply provides a check, money order or cash to the other parent in the mail or in person.

In addition, child support can be payable through the Support Collection Unit. The support payer sends a check or money order to the Support Collection Unit, and the agency follows this up with a check to the custodial parent. The agency also keeps track of all the payments and is aware when support arrears have accrued.

The third method of paying child support is through an income deduction order. Thus, payments are garnished from the non-custodial parent's salary and sent to the Support Collection Unit who subsequently forwards the payment to the recipient spouse.

My wife and I are getting divorced. Am I automatically required to pay her child support?
In general, no. Until one of the parents is awarded custody of a child by the Court, neither parent is obligated to pay child support to the other. In addition, once custody has been established in one of the parents, the custodial parent may still need to file a petition with the Court seeking an award of child support.

My husband and I are getting divorced. Can I keep my engagement ring?
In general, yes. An engagement ring is a conditional gift. It is conditioned upon the marriage actually taking place. Once the marriage has occurred, the condition has been satisfied, and the engagement ring belongs to the recipient.

During the course of our marriage, several items including our home were purchased with funds from our joint bank account. However, my husband insisted that these items be titled solely in his name. Now that we are getting divorced, am I entitled to any portion of these assets given that my name is not on the title?
In general, the answer is yes. New York is an equitable distribution state which means that all marital property will be divided equitably, without regard to whose name it is titled in.

I want custody of my children, but my spouse is driving me crazy. We’re constantly fighting. Can I move out of the house we own and leave the children with my wife?
You can move out, but there are serious consequences, both in terms of custody and financially.

With regards to custody, if you leave the children with your spouse, you are essentially acknowledging that he or she is a good parent as you would not leave your children with someone who would endanger their physical or emotional well being. Thus, when you later seek to establish that you should obtain custody, it will be difficult to allege that your spouse is not a good parent.

With regards to finances, if you move out, you will most likely be paying for a place to live. There is also a possibility that your spouse will obtain a court order directing you to continue making payments on your marital residence. You may be unable to afford to pay for both homes.

My former spouse and I entered into a stipulation of settlement as part of our divorce. The agreement provides for me to have visitation every other weekend and on Thursday evenings. Can we agree to provide me with additional visitation without going back to Court?
Yes. If you and your former spouse agree to additional visitation, you do not need to go back to court. You are free to exercise as much visitation ad you and your former spouse verbally agree on. However, keep in mind that without memorializing this additional visitation in a formal agreement, your spouse is free to stop this additional visitation at any time. Thus, it is better practice to put it in writing, although as mentioned above, you are free to simply verbally agree so long as each spouse adheres to the verbal changes.

My former spouse is obligated in our divorce judgment to pay me child support and maintenance (alimony). He recently filed for bankruptcy. Will he be able to obtain a discharge for these support obligations?
No. Child support and alimony payments are not dischargeable in a bankruptcy proceeding.

My divorce judgment was just signed. Is there anything important that I need to do in the immediate future?
Yes. You must immediately make sure that your former spouse is no longer a beneficiary under your life insurance policies and in your will unless your divorce agreement or judgment provides for you to maintain them as a beneficiary under such documents. In addition, if your spouse waived his or her entitlement to your retirement benefits, you must make sure they are immediately removed as your beneficiary under the policy. The same holds true for bank accounts, security accounts as well as any other accounts.

My spouse obtained custody of our children in our divorce settlement and I am paying child support. Am I entitled to claim the tax dependency exemption on my tax returns?
Absent an agreement, the custodial parent is entitled to claim the children as dependency exemptions on their income tax returns. However, it is fairly common for the custodial parent to agree in a divorce stipulation to permit the non-custodial parent to claim the tax dependency exemption either each year or in alternate years. It is also possible for the parties to agree to divide the exemptions each year if more than one child is involved. If the custodial parent agrees to waive their entitlement to claim the dependency exemption, they must fill out a form that is filed with their tax returns each year.

What are interrogatories?
Interrogatories are written questions regarding the financial aspects of the divorce action. They are served by one attorney upon the other and require the recipient spouse to answer a series of written questions which concern the parties’ finances.

What is a deposition?
A deposition or an E.B.T. (Examination Before Trial) involves your spouse’s attorney questioning you under oath before a court reporter about financial aspects of your marriage. The questions are limited to financial aspects of the marriage and cannot concern custody issues or issues concerning grounds for divorce. The deposition usually takes place in one of the attorney’s offices, but can take place at the court house.

As part of our divorce settlement, I would like my spouse to maintain me on his medical insurance. Can this be done?
Generally, the answer is no. Once you are divorced, you are no longer part of your spouse’s family. As a result, it is typically impossible to remain on your spouse’s policy once you are divorced. You may be eligible for COBRA benefits however.

I have heard the phrase pro rata share in connection with child support. What exactly is that?
Pro rata share is the percentage of one parent's income compared with the total combined income of both parents. For example if you make $80,000.00 per year and your spouse earns $20,000.00, your pro rata share is 80 percent as you earn 80 percent of the total combined income in the amount of $100,000.

The court appointed a Law Guardian/Attorney for Child in my case. What is that?
A law guardian is a lawyer appointed by the Court to represent your children. You have an attorney who is protecting your interests while your spouse has an attorney protecting his or her interests. A law guardian is appointed to promote and protect the best interests of the children. The law guardian will report to the Court on what your child wants and/or what the law guardian believes is in the child's best interests. The Court may, but is not required to adhere to the law guardian's recommendations.

I have sought a downward modification of my child support and maintenance obligation owed to my former spouse. If I am successful, when will my lower payments start?
In general, a downward modification application is retroactive to the date of your application. (The date you submitted the application to the Court.)

My daughter is 18 and she is working full time. She is no longer living with her mother and is residing on her own. I believe she is therefore emancipated. Can I stop making child support payments on her behalf?
No. You may very well be correct, but you must petition the Court for a determination that your child is emancipated before you can stop making the payments.

My son has reached the age of 21. My daughter is still 16. My divorce agreement says that child support payments end at the age of 21. Can I simply stop making payments on behalf of our son?
No. Child support is not self effectuating. As long as there is a valid Court order requiring you to pay child support, that order will continue to be in full force and effect until such time as you go to Court to seek a modification of your child support obligation.

My former spouse has custody of our children pursuant to our divorce agreement. Both of my children recently moved in with me and they have not desire to go back to live with their mother. Can I obtain child support payments from their mother?
Yes. You must go to either Family Court or the Supreme Court and seek a termination of your child support payments on the grounds that the children are no longer residing with their mother and also seek child support for yourself on the basis that the children have permanently come to reside with you.

My former spouse has custody of our children pursuant to our divorce agreement. Both of my children recently moved in with me and they have no desire to go back to live with their mother. Can I simply stop paying child support since the kids are now living with me?
No. Child support is not self effectuating. As long as there is a valid Court order requiring you to pay child support, that order will continue to be in full force and effect until such time as you go to Court to seek a termination of your child support obligation.

I am paying 17 percent of my income to my spouse for child support on behalf of our daughter. She just got a job and wants me to pay a portion of her child care costs. Am I obligated to do this?
Yes. Pursuant to the Child Support Standards Act, the non custodial parent is obligated to pay their pro rata share of child care costs incurred with the custodial parent is working.

My spouse and I resided with our children in Arizona for the past five years. I couldn't take the arguing any more so I moved out of the house and took the kids with me to New York. Can I immediately seek custody of the children in New York?
In general, no. Absent some type of emergency or exigent circumstances such as the need to protect the health, safety or welfare of the kids, you must seek custody in the children's home state which is defined as the state in which the children resided on a continuous basis for a period of six or more months.

I was previously employed as an accountant. I didn't like my job so I left to start my own construction business. My business isn't doing so well and I'm making less money. Am I entitled to a downward modification in my child support payments?
No. If you voluntarily leave a higher paying job for a lesser paying position, you are not entitled to a downward modification of child support.

What is a Preliminary Conference?
A Preliminary Conference is typically the initial Court conference in a divorce action. The purpose is for the attorneys to speak with the Court in an effort to resolve any pressing or immediate issues and to discuss the case with the Court. The attorneys and the Court will seek to narrow the issues and to see exactly what issues can be resolved and what issues are being contested. In addition, discovery timetable will be established so that the case can be assured of moving forward as expeditiously as possible. Thus, dates for depositions will be set as well as the date in which financial documents will be exchanged. In addition, the Court may appoint a law guardian for the parties' children and experts may be appointed to appraise real estate, business interest and/or retirement benefits. In some cases, the Judge will address the parties from the bench.

Can my spouse be directed to pay my legal fees?
The Court in a divorce action is empowered to award legal fees to a spouse based upon financial need coupled with an ability of the other spouse to afford such fees. Legal fees can also be awarded where one of the spouse's actions delayed the matter or were improper to the point that the wanton actions delayed the divorce action and/or caused legal fees to be accumulated unnecessarily. Examples of improper actions by a spouse which might result in an award of counsel fees would be the failure to pay support or to comply with discovery demands or court directives.

My children and I reside in the marital residence. Will I have to sell the house as part of the divorce settlement?
Not necessarily. There are several options with regards to the marital home. One of the options is to sell the house and distribute the proceeds of the sale equitably. Another option is for one spouse to buy out the other spouse's interest in the marital home. The third option is to allow the custodial parent to reside in the marital residence with the children until a certain point in time, frequently the youngest child's graduation from high school. At that point in time, the residence can be sold with the proceeds of sale divided equitably. This third option is typically done either by agreement of the parties or by a Court where the children are old enough wherein they have strong enough ties to the local scholl system, friends and the community.

Why am I being told that a law guardian is being appointed to represent my children?
A law guardian is an attorney who is appointed by the Court to represent the children of parents who are engaged in a divorce action. This is done where custody is an issue. Just like the spouses who have their own attorneys, a law guardian is an attorney who represents the children. The law guardian will speak with the children and report back to the Court with the children's wishes and/or what the law guardian believes is in the children's best interests.

What is an EBT?
EBT stands for Examination Before Trial. It is also known as a deposition. An EBT is where one of the spouse's attorneys questions the other spouse under oath before a court reporter regarding finances of the parties' marriage. The questions are limited to finances and cannot involve issues of custody or grounds for divorce. Every divorce case does not include an EBT. If the required financial documentation can be obtained by alternative, less costly or less invasive means, a deposition can be avoided.

What exactly is a four way meeting?
A four way meeting is a settlement meeting attended by the two spouses and their respective attorneys. It is typically held in the office of one of the attorneys and is aimed at discussing the outstanding issues and seeing if a resolution of some or all of them can be attained. Such a meeting is usually, although not always held after the parties have exchanged their financial documents.

How will my case be resolved if we do not go to trial?
Each and every divorce case ends in one of the following two ways. Either as the result of an amicable settlement or as the result of a judge's decision following a trial. An amicable settlement involves the parties reaching an agreement on all of the issues of the divorce action which typically includes grounds for divorce, custody, child support, maintenance (alimony), equitable distribution, payment of the parties' liabilities, payment of counsel fees and the like. If an agreement is reached on all issues, a document known as a Stipulation of Settlement is prepared. This document is a formal contract signed by both spouses and filed with the Court. The stipulation of settlement will include exactly how each of the issues between the parties has been resolved.

My spouse physically assaulted me, threatened to kill me and verbally abused me. What should I do?
If your spouse ever does any of these things to you, the first thing you must do is immediately call the police. When the police arrive at your house, make sure a written police report is issued documenting the incident. Then, you must go to Family Court in the county where you reside to file for an order of protection. This order of protection may include an order directing your spouse to stay away from you and your home meaning that he or she must vacate the home. In the alternative, the order of protection may direct that your spouse refrain from harassing or assaulting you. There are criminal penalties imposed for the violation of an order of protection.

My spouse had an extramarital affair, verbally abused me and punched me on several occasions. Do these factors entitle me to obtain a greater percentage of our marital property in equitable distribution?
No. In general, marital fault is irrelevant and is not considered when marital property is equitably distributed by the Court. The only time marital fault is taken into consideration by the Court is when one spouse engages in egregious conduct which shocks the conscience such as by raping the other spouse, engaging in a pattern of severe physical abuse or by attempting to murder the other spouse.

My husband and I are in the midst of a highly contentious divorce action. He moved out of the house voluntarily at the outset of the litigation. Now he tells me that he wants to move back in. Can he do this?
The Court is empowered to award exclusive use and occupancy of the marital residence to one of the spouses in a divorce action where the other spouse has voluntarily moved out of the home, and where that spouse's return to the marital residence is likely to result in undue stress or strife to the remaining spouse and/or the parties' children.

I just concluded the trial in my divorce action. The judge directed me to pay child support to my wife and maintenance (alimony) as well. Am I entitled to claim a deduction on my taxes for any of these payments?
Effective for all agreements and orders after December 31, 2018, maintenance will no longer be deductible on the payor’s tax return or includible as income on the payee’s tax return. Prior to that, maintenance would be deductible by the payor and includible in income by the payee.

I had a fight with my boyfriend and he hit me and threatened to kill me. Can I seek an order of protection against him in Family Court?
While you can seek an order of protection against your boyfriend, it must be filed in District/Criminal Court. In order to seek an order of protection in Family Court, you must be related by blood or marriage to the other party, or you must have a child in common. As you do not have a child with your boyfriend and are not related to him by blood or marriage, you cannot file in Family Court. You can however seek an order of protection in the Criminal Court.

My spouse recently filed for a divorce against me. We have two children. What are our options in terms of custody?
There are several options. The most common scenario is that one of the spouses will have sole custody of the children. That means that both children will primarily reside with one of the parents who will be responsible for making all of the major decisions for the children such as education, medical and religion. The other parent will receive visitation rights with the children.

Another option is joint custody. This means that the children will still primarily reside with one of the parents and the other parent will have visitation rights. However, all of the major decisions pertaining to the children will be made jointly by both of the parents.

A third option is shared parenting. This means that the children will divide their residence between the parents, with each of the parents having the children in their home approximately 50 percent of the time. In general, all major decisions would be made jointly as with joint custody.

There are several variations on the above scenarios. For example, it is possible, although not advisable for the parent who does not have physical custody to be the sole decision maker. Another scenario would be for the children to each reside with a different parent. However, it is typically not wise to split up the children.

My spouse has a pension with his employer. He is 35 years old and cannot obtain the proceeds from his pension until he retires. If we get divorced, am I entitled to any portion of his pension?
Yes, Even though your spouse won't obtain these pension funds until his retirement, the New York Courts still classify them as marital assets. However, the entire value of the pension is not necessarily considered a marital asset. Thus, only that portion of the pension which accumulated during the marriage (from the date of the marriage until the commencement date of the divorce action) is considered a marital asset. To calculate the amount of the pension which is marital, the present value of the pension is multiplied by what is known as a coverture fraction. The numerator of the fraction is the total number of years the spouse participated in the pension plan while married. The denominator represents the total number of years in the pension plan.

Is a Court Order required to distribute my 401K account subsequent to my divorce?
Generally, yes. A Court Order known as a Qualified Domestic Relations Order is generally required in order to divide a 401K account.

I received an inheritance during the marriage. I am now getting a divorce. Is my spouse entitled to any portion of my inheritance?
That depends. In general, an inheritance is a spouse's separate property, and is not considered marital property for the purpose of equitable distribution. However, in order for property or money obtained as part of an inheritance to definitively be considered a spouse's separate property, it cannot be placed into a joint account or in an account in the other spouse's name, cannot be mixed with marital funds and in the event of real property, it cannot be transferred into the other spouse's name and the other spouse's name cannot be placed on the property.

I recently moved to New York. I want to seek a divorce. Have I lived in New York long enough to obtain a divorce?
That depends on the factual circumstances of your situation. There are certain residency requirements which must be satisfied prior to being able to obtain a divorce in the state of New York. For example, in order to maintain an action for divorce, separation or annulment in New York, the following residency requirements must be met:

The parties were married in New York and either party is a resident of the state when the action is commenced and has been a resident of New York for a continuous period of one year immediately proceeding the action; or

The parties have resided in the state of New York as husband and wife, and either party is a resident of the state when the action is commenced and has been a resident of New York for a continuous period of one year immediately proceeding the action; or

The grounds for divorce occurred in New York and either party is a resident of the state when the action is commenced and has been a resident of New York for a continuous period of one year immediately proceeding the action; or

The grounds for divorce occurred in New York and both spouses are residents of New York at the time the action is commenced; or

Either party has been a resident of New York for a continuous period of at least two years

My spouse has an IRA that was started during our marriage. Am I entitled to a portion of it?
In general yes. The law provides for a spouse to receive an equitable share of those IRA benefits that accumulated from the date of the marriage until the commencement date of a divorce action.

How are IRA benefits distributed upon the completion of a divorce action?
Generally, one spouse can roll over funds from their IRA account into an IRA account in the name of the other spouse. No court order or Qualified Domestic Relations Order is typically required.

What is a defined contribution retirement plan?
A Defined Contribution Plan is one in which both the employee and the employer contribute, such as a 401K plan or an IRA. 

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Memberships and Affiliations

American Academy of Matrimonial Lawyers • Attorney/Accountant Networking Group (AANG) • Attorney Round Table (ART) • California Bar Association • East Meadow Chamber of Commerce • Florida Bar Association • Florida Bar Family Law Section • Melville Chamber of Commerce • Nassau County Bar Association • Nassau County Bar Child Custody Sub-Committee - Past Chairperson • Nassau County Bar Matrimonial Committee • Nassau County Bar Speaker Panel • Nassau County Bar Association Board of Directors • Nevada Bar Association • New York Family Law American Inn of Court • New York State Bar Association • New York State Bar Association Family Law Legislative Sub-Committee • New York State Bar Family Law Section • Past Member - Board of Directors - Bellmore Chamber of Commerce • Past President - Kiwanis Club of the Bellmores • Pulse Magazine's Top Legal Eagles • St. Anthony's Fathers Guild • Suffolk County Bar Association • Suffolk County Bar Matrimonial Committee

Russell I. Marnell, P.C.

Melville Office
One Huntington Quad
Suite 1N10
Melville, NY 11747

Smithtown Office
180 East Main Street
Suite 308
Smithtown, NY 11787

East Meadow Office
90 Merrick Avenue, Suite 106
East Meadow, New York 11554

Please direct all inquiries to the Melville office