Divorce Laws - Common Grounds Covered Under Divorce Laws

During a divorce, there is a very wide array of laws that may be applied during negotiations or trials. These laws may cover anything, from what belongings will remain is whose custody to child and spousal support and retirement savings. An attorney with experience in divorce proceedings is able to help someone ensure they receive all they may be entitled to during the process of seeking a divorce.

Child Protection and Support

Under the vast nature of these aspects covered by laws surrounding the nature of divorce, the most commonly known laws pertain to child support and material belongings. There are agreements that protect the assets one has earned previous to marriage, called prenuptial agreements. If a prenuptial agreement has been signed, it means that the assets one of the parties had gained previous to the marriage remain the sole possession of that party. In the case of a divorce, there would be no question that those assets would remain with the owner as stated in the prenuptial agreement. When there has been no agreement made or signed, the parties involved must come to an agreement regarding their belongings and other assets and who will retain custody of those items. If this cannot be done amicably, a trial may occur where a judge will make the decision instead.

Child Custody

In proceedings where children are involved, custody and child support usually come into play very quickly. Custody hearings may involve a separate trial altogether, but child support is usually approached under the initial divorce proceedings. It can be very costly to raise a child, and as most are aware, life as a single parent is no easy task. Child support payments may be required in order to ensure that the child's quality of life remains stable after the separation.

Spousal Support

Spousal support in an area that many people ask questions about. In some cases, one spouse may be required to assist the other in maintaining their quality of life. An example of this can be if a man asks his wife to retain the traditional role of housewife while he works. When a divorce occurs, this woman may not have the life skills needed to obtain work outside of the home and earn the money needed to maintain a healthy quality of life. A judge may rule that the husband is responsible to ensure of this, since it was he who suggested she forgo those life skills in order to fulfill the role of traditional housewife. This can also occur in opposite roles, where a woman may be required to provide her ex husband with spousal support payments.

These are just a few examples of what is covered by divorce laws, although there are many other aspects included and they do vary according to region. When considering a divorce, it is important to seek legal advice through an experienced and qualified attorney before making any decisions or actions.

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Equitable Distribution of Marital Property Under New York Divorce Law

New York divorce law provides for a much more expansive definition of marital property than is found in most other states. The definition applied by New York courts bears little resemblance to traditional concepts of "property" as that term is understood under common law.

In the context of divorce, property is defined as "things of value arising out of the marital relationship." O'Brien v. O'Brien, 66 N.Y. 2d 576, 583 (1985). "Things of value" may be tangible or intangible. Elkus v. Elkus, 169 A.D.2d 134 (1st Dept. 1991). Marital property, as that term is used in the Domestic Relations Law, includes pensions, advanced degrees, and professional licenses that, in other contexts, might not be recognized as "property". New York's Court of Appeals determined that in divorce, a professional license is an item of value subject to equitable distribution because of its value, as well as the money, effort, and lost opportunity for employment expended in its acquisition. More recently, there has been disagreement about whether enhanced earning capacity (even absent a license or a degree) may be considered an item of value subject to equitable distribution. This issue was first decided by the New York courts in a divorce case involving a spouse who acquired celebrity status during a marriage. Golub v. Golub, 139 Misc.2d 440 (Sup. Ct. New York County). The court's determination that celebrity status was subject to equitable distribution was considered by many to be a relatively straightforward application of the principals enunciated by the Court of Appeals in O'Brien.

However, more recent suggestions that "enhanced earning capacity" is subject to distribution, even absent special circumstances such as celebrity status, have generated controversy among New York's matrimonial bar. The concern is that New York divorce law is going to an unsustainable extreme in finding property interests, and that unsuspecting litigants are being unnecessarily forced into costly divorce litigation involving complex appraisals.

The broad definition of marital property under New York divorce law translates into more expensive and complex divorce cases. Perhaps the easiest proactive measure is that chosen by many New York residents - a prenuptial agreement that specifically sets forth each parties' interests, rights, and responsibilities.

Marc A. Rapaport is a New York divorce attorney with 14 years of experience. Mr. Rapaport handles both contested and uncontested divorce and family law cases in New York City. He maintains a full-service law firm based in the Empire State Building, in midtown Manhattan. His firm represents individuals in family law and matrimonial cases throughout the New York metropolitan area. The firm also represents individuals in complex, international child custody disputes. Mr. Rapaport regularly appears in the local and national media, including the National Law Journal, New York Magazine, New York Law Journal, and more. Mr. Rapaport's articles regarding New York divorce have been published in legal journals. Read more about the unique complexities of New York divorce law at http://www.RapaportLaw.com