Question #94

Regarding the Disability- If this payment is a result of some injury or accident and is instead of insurance, it is most likely not marital property, and you do not have any claim to it. Early retirement – Pension – You do have a claim to approximately one half of the pension earned during your marriage.

Regarding the bankbooks and apartment – If the money and property were acquired by you before marriage and kept in your name, they are separate property and not marital property and belong exclusively to you.

You mentioned being separated from your husband, was this
legal separation, and was there a Separation Agreement?

It is essential to take care of these matters properly!

If you are living in the NYC metro area, please call me to
discuss mediating your divorce and preparing the needed legal papers.

Leonard M. Weiner, Esq. /Divorce Solutions


To accurately answer your question, I must have more information regarding the Separation Agreement or court order which your parents entered into received at their legal separation. Such a Separation Agreement or court order would generally outline the support obligations of your father both for the children, including children above 18 who attend college, and also the support he is obligated to provide to your mother.
The Separation Agreement or court order should also deal with the support issues post-divorce. If it does not, your parents should try to mediate the matter of all the outstanding problems needed to be resolved before they agree to divorce.
If they are located in the New York City metropolitan area, I strongly suggest they call me at 212-370-1660 to discuss the matter at greater length.
Leonard M. Weiner, Esq. \ Divorce Solutions

Question #3

The 17% child support requirement for the first child is a provision of the Child Support Standards Act (Chapter 567 of the 1989 Laws of the State of New York) as presently codified in Section 240 of the Domestic Relations Law as amended. It would be beyond the scope of this page to discuss the entire child support provisions in detail and the intricacies of calculating the amounts. If you are located in the New York City Metropolitan area, I suggest you call me at 212-370-1660 to arrange a meeting to discuss the matter in greater length.

You may wish to take a look at the statute and the annotations cited for further details.

Leonard M. Weiner, Esq./Divorce Solutions

Question #4

If your husband has engaged an attorney to represent him, you should get legal representation as well. If you cannot afford legal counsel by yourself, the court would require him to pay for your legal counsel. You should arrange to speak to an attorney experienced in divorce mediation who could assist you in acquiring this help and getting the court to approve such legal expenses if your husband refuses to provide them to you. Many attorneys-mediator will not charge for the first consultation and can provide you with valuable information regarding your rights and how to proceed.

If you are in mediation, your mediator should assist you in determining how to divide the child support responsibilities in a fair and just manner. It is not unreasonable for your husband to be relieved of his regular child support obligations during the month or more in which he has the children. It is, however, unreasonable for you to be expected to give up your residence and the marital residence during the regular school year of the children during this month or so in which he has them. Therefore accommodation should be made to provide you with enough money to maintain the upkeep and rent of the living quarters for the entire year.

You do not address the issue of spousal support, in which your husband should provide you with support for yourself and your upkeep and needs, in addition to the child support requirements, which he must give. If your income is so much less than his, and during the marriage, you were living on a higher living standard than you presently can afford on your salary alone, you are entitled to receive spousal support for a limited amount of time for you to develop your professional skills and begin earning enough to support your needs.

Regarding the tax deduction, it is a matter which you should negotiate with your husband. There is no right or wrong answer, but it is another negotiating element that must be considered in the overall settlement between both of you.

I get the impression that although you may have seen a mediator, you are not receiving professional mediation assistance from an experienced attorney-mediator who would take control of the process and lead both of you through all of the issues which must be resolved to arrive at a Separation Agreement.

All of these issues which you raise should have been dealt with in mediation, and the mediator should be assisting both of you at arriving at a reasonable solution that meets the needs of both parties.

Mediation with an experienced, attorney-mediator is the way to go. Good luck!

Leonard M. Weiner, Esq./Divorce Solutions

Question #6

1. An action for divorce or separation may be maintained in New York when a) the cause occurred in the state, and either party has been a resident for a continuous period of at least one year immediately preceding the commencement of the action; or, b) either party has been a resident of the state for a continuous period of 2 years immediately preceding the start of the action. Thus, if you lived together with your spouse in New York and she was a resident of New York for one year or more, or she lived in New York for more than two years before the action, New York would have jurisdiction, and you can file for both separation and divorce in New York. (DRL Section 230) .

2. Unless you had legally adopted the child, which your spouse had before your marriage, or you contractually obligated yourself to support such a child in some agreement between you and your spouse, you have no obligation to support such a child. You also do not have any legal standing to demand visitation or custody rights since you are not legally tied to such a child.

Please call me if you need my assistance.

Leonard M. Weiner, Esq./Divorce Solutions

Question #9

The guidelines for income above $80,000 apply the same percentage standard as below $80,000 unless the judge has some reason to use a different standard. Nevertheless, the parties can usually agree to deviate from the guidelines, as long as they adequately provide for the support of the children, which includes educational and medical support as well.
Concerning the 401K, the present value of the account will have to be determined, which shall include a reduction in the sum to cover the percentage of tax owed, and the net result will be credited to the other spouse. No new IRA account is established.

If both parties are in agreement regarding the need for a divorce, the one-year waiting requirement can be avoided.

If both parties are in agreement regarding the sale of the house or other marital property, such property may be disposed of or sold as agreed upon, and the proceeds divided by the parties according to their agreement. Such an agreement should be in writing and be prepared by an experienced attorney-mediator who is familiar with the requirements of the court.

Please give me a call at 212-370-1660, and I will be glad to discuss with you the possibility of mediating and preparing all of the necessary documents.

Leonard M. Weiner, Esq. Divorce Solutions

Question #14

Each state has its specific requirements. The State of New York Domestic Relations Law (D. R. L.) Section 240 provides a complex statutory requirement depending upon the income of the parents and the number of children. The basic amount, however, is 17% for one child, 25% for two children, 29% for three children, and 31% for four children, all percentages calculated on the combined parental income of both parents. The actual figure will vary depending upon several complex factors that require consultation with an attorney well acquainted with this provision. For additional information, please call us at Divorce Solutions.

Question #15

To correctly answer your question, I must review the Separation Agreement entered into by your brother in which it most likely expressly states how long and how much he must contribute to the support of his daughter. It most likely provides for an extended period beyond the age of 18 in the event she continues her education. In the State of New York, for instance, child support continues up until the age of 18, unless additional factors are requiring extended support such as education. Many states’ divorce statutes provide for the emancipation of a child who marries, which would terminate all support requirements. If Kentucky has jurisdiction over the divorce, you must inquire as to the specific statutory provision regarding this issue.
There should be no question that if the extension of child support is conditioned upon the child continuing her education, that your brother should have access to all information and documentation, including a letter from the registrar of the educational institution in which she is enrolled, supporting her contention that she is pursuing her education and is eligible for extended child support.

Question #17

If you wish to fight this unfair assessment, you must convince the judge that this decrease in salary is not a fluke but is the present salary that is commensurate with the type of skills that you have, and that the old salary upon which the original child support was based is no longer realistic. Do some research about present salaries in your profession and back up your claims with authoritative sources. Your task is an “uphill” one but can be done if you substantiate your position with supporting documentation.
Leonard Weiner, Esq / Divorce Solutions

Question #19

The statutory amount required for two children is 25%, but only up to the combined incomes of both parents of $80,000; after that, it is up to the courts to decide. The exact calculation is complex and not for this message. You are allowed to agree between you to deviate from this statutory amount, and you should be insisting that you cannot afford such a big chunk of your paycheck and will be forced to default on such an intolerable obligation. I strongly suggest you try mediation to resolve this and any other matters you both have outstanding. If you are located in the NYC metro area, call me at 212-370-1660 to discuss further.

Leonard M. Weiner, Esq. /Divorce Solutions