Question #1

The courts in New York have become more receptive to the idea of the custodial parent moving out of state. Each case is reviewed individually by the court on its merits, with the prime consideration being the well being and benefit to the children. Generally, the courts are reluctant to allow one parent to take the children away and thus interfere with the ability of the remaining parent to visit and develop a strong relationship with the children. You cannot simply take the children and run to a different state without first getting court approval.

Concerning your earnings which are greater than your spouse’s, it will all depend on how much of a gap between the two incomes there is, and your spouse’s ability to live on the income he makes by himself, and the economic level you both were accustomed to living at when you were married.

Once you file the Separation Agreement, all the earnings of each party will belong to him/her individually from the date agreed upon, if you so provide in the Separation Agreement.

If you wish to discuss this matter at greater length and are interested in considering mediation of these outstanding issues, please call me at 212-370- 1660.

Good luck!

Leonard M. Weiner, Esq./Divorce Solutions

Question #2

Concerning the question of credit card accounts, I suggest that you both pay off all the outstanding debt on all the cards and terminate them entirely. This way, you will be sure that no liability exists on them, and then you can open a new account just on your name.

Concerning the question of grounds for divorce, New York requires specific grounds (please see earlier questions and s on my web site which deals with the detailed grounds for divorce). Among them are the ones you mentioned.

However, if your wife is intent on fighting the divorce, you will have to prove the grounds upon which you are asking the court to grant you your divorce, and this good prove difficult and expensive.

You are much better off trying to get your spouse to mediate this divorce, which will save you time, money, and much less emotional strain.

If you are located in the New York City metropolitan area, I suggest you give me a call at 212-370-1660.

Leonard M. Weiner, Esq./Divorce Solutions

Question #3

I believe that consultation with an experienced family counselor could assist you and your spouse in resolving some of your marital problems. Every effort should be made to keep the marriage intact for the sake of your daughter. If, however, the marriage is untenable, you should seek out an experienced attorney-mediator specially trained in divorce mediation.

Bankruptcy may provide you relief from the creditors which you have, but I am not convinced that your financial situation will be improved by declaring bankruptcy.

If kissing a member of the opposite sex were deemed adultery by the laws of your state, the jails would be overflowing with offenders. It may or may not be proper conduct for a married woman to engage in, depending on the society she lives in, but it is not considered adultery in any state that I am aware of.

Leonard M. Weiner, Esq./Divorce Solutions

Question #4

To accurately answer your question I must know in which state you are presently living, where your spouse is living, if there are any children and where they are currently living, are there any marital assets (for a definition of marital assets, please see some previous Q & A), where the marriage took place and where you lived as a married couple.

Not all jurisdictions have no-fault provisions. New York State requires one to prove fault to get a divorce, although if the parties are cooperative, the courts have liberally interpreted the statute to allow the couple to divorce.

The question of custody of your one-year-old child will depend on the court’s opinion on whether your wife is capable of providing the best setting for your child to grow up in. Certainly, if there are drugs involved, the court will not look favorably at such a situation. It will most likely give custody to you if you can show that you can provide a more favorable financial and social setting for the child to grow up in.

Leonard M. Weiner, Esq./Divorce Solutions

Question #5

DRL Section 140 [there is no Section 140(1)] deals with the annulment of marriages based on six specific grounds:1) former husband or wife living, 2) party under the age of consent; 3) party mentally retarded person or mentally ill; 4) physical incapacity; 5) consent by force, coercion or fraud; 6) incurable mental illness for five years. This is not the section one would reference to seek a divorce and equitable distribution.

To your questions, I need to know more specific facts about your case. Are you a resident of New York State? Were you living in New York before the separation? Do you have any minor children? Where does your spouse live presently?

New York State requires the equitable distribution of marital assets. This means that all assets acquired during the marriage, regardless of whose name the assets are held in are marital property and will generally be divided equally, or at least equitably, between the two parties. Do you own any property, including real estate, securities, bank accounts, etc. which would fall into this category?

You must respond to the Complaint received within the twenty days as directed. I strongly suggest that you call my office at 212-370-1660 to arrange to prepare to the Complaint.

I also strongly urge you to contact your spouse and try to convince her to mediate rather than litigate the issues involved in the separation and divorce.

Leonard M. Weiner, Esq./Divorce Solutions

Question #6

The answer to all your questions is yes! However, you must carefully address each of these issues in your Separation Agreement, which should be drafted by an experienced matrimonial attorney-mediator.

If you are living in the NYC metropolitan area, please call me at 212-370-1660 to discuss the matter further.

Leonard M. Weiner, Esq. /Divorce Solutions

Question #7

From the information that you provided above, you should have been able to get an order of protection, which provided that your husband leave the family residence. I don’t understand why your attorney was unable to help you with this matter. It is even more difficult to understand how someone who has suffered both physical and mental abuse would return to the home and subject herself once again to this same abuse.

In any case, the advice you have been given regarding marital property, and the right of your husband to destroy your share of it is incorrect. As long as you are married, the property which is in your name belongs to you, not him. Such property,(if acquired during the marriage) becomes “marital property” only upon suing for divorce. And even when it’s marital property, you still have an approximately 50 percent interest in such property, and he cannot take or destroy it, or he will have to repay you for the damage caused to your percentage of the property.

Concerning the question about constructive abandonment, constructive abandonment requires that the defendant refuse to have sexual relations with the other party and that this has continued for one year. It does not matter whether you are living in the same house are not.

If you are living in the New York City metropolitan area, please call at 212-370-1660 to discuss the matter in greater length and to arrange for an appointment to see if we can mediate your divorce.

Leonard M. Weiner, Esq./Divorce Solutions

Question #111

It depends on which county one is filing in. In NYC, the wait is about three months after all of the papers are properly prepared and filed in an uncontested divorce. In Westchester and Nassau, it is usually signed
by the judge within a month and in Rockland within a few weeks.

If you are considering divorce and live in the NYC metro area, please call me to discuss mediating your divorce. I can help.

Leonard Weiner, Esq./Divorce Solutions

Question #112

You do not have to be physically present in NY to file the papers, but you should not be relying on “self-help” to prepare and file your divorce.

There are many issues and legal concerns that must be addressed in the process which require experienced legal counsel and, if not discussed and resolved before the papers are filed, will come back to haunt you later in life.

I strongly urge you to give me a call at 212-370-1660 to discuss arranging for a meeting to discuss these matters at greater length.

Leonard Weiner, Esq./Divorce Solutions

Question #147

Unless this is a case involving physical abuse, in which case I strongly recommend that move out of immediately, it would be most prudent that you remain in the house, especially if you intend to claim an interest in the house either by personal contribution or as a result of it being marital property. Before you make any decisions you should consult with an experienced matrimony attorney.

If you are living in the New York City metropolitan area, I strongly suggest you call me at 212-370-1660 to arrange for an appointment to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions