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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89094
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Is there a benefit to filing an at-fault divorce as opposed

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Is there a benefit to filing an at-fault divorce as opposed to a no-fault divorce in the state on NY? I have ground for a divorce based on constructive abandonment. My husband and I don't have children or many assets together but I am very much hoping that he will give me some money to buy the basics when I move out of the house... Do you have any advice? Also, will it hurt my case if I move out of the house before we've filed for divorce? Thank you!
Submitted: 2 years ago.
Category: Family Law
Expert:  Ely replied 2 years ago.
Hello, my name is Ely. I am here to help you. There may be a slight delay between your follow ups and my replies as I type out a reply. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not to tell you what you necessarily wish to hear.

I am sorry for your situation. Can you please tell me if the home was purchased during the marriage or before it?

This not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.
Customer: replied 2 years ago.
We do not own a home or any substantial property, just small things in the house that we bought together: tv, etc. Its a rented apartment. How do they figure out how to divide assets if we have separate accounts? Thanks again.
Expert:  Ely replied 2 years ago.
Angela,

Division of Property
Whatever was owned before the marriage by either of you is considered "separate property" and goes to whichever one owned it. Same thing with any sums of money that were had before marriage, or inherited while married (unless commingled with marital income to the point where it impossible to discern) - this all is considered separate property. Everything else (including income while married) is marital property. New York is an "equitable distribution" state. Equitable does not mean 50/50, but rather what is deemed by the Supreme Court to be fair. Ergo, this gives the Court a lot of discretion. O'BRIEN v. O'BRIEN, 66 NY 2d 576 - NY: Court of Appeals 1985.

Fault Versus No-Fault
Equalizing payments can also be ordered if one party argues a FAULT such as constructive abandonment, adultery, etc. Generally, one party simply alleges irreconcilable differences. However, most states retain grounds for divorce where one party alleges fault when divorcing, such as neglect, assault, affair, etc, and because of this, the Court can award that party additional equalizing payments. So if you can prove this, then you may get a bigger "share" of what is considered marital property.

Moving Out
This does not hurt your case at all.

Alimony
Alimony is based on need and is no a case by case basis. There is really no way to know what the Court will order because not only is it on a case by case subjective matter, but it is also up to one person - the Judge - who goes off no formula, but these subjective factors:

(1) any income or assets of the parties including the property award;
(2) the length of the marriage and the age and health of the parties;
(3) the earning potential of both parties;
(4) If and how long it would take the party seeking support to become self-supporting;
(5) reduced or lost lifetime earning capacity;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax ramifications;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) any dissipation of assets;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.

Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236

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Customer: replied 2 years ago.

We both make good salaries, though he still make about 20% more. Does this hurt me in trying to negotiate a cask settlement? Is there some rule of thumb as to what one might expect as a portion of salary or for number of years married? I did not work for 2 or so years out of the 7, but made substantially less than him over most of the period.

Expert:  Ely replied 2 years ago.
Angela,

Many thanks for your follow up.

Does this hurt me in trying to negotiate a cask settlement?

What do you mean by this, please?
Customer: replied 2 years ago.
Oops sorry thats a typo- I meant cash/ financial settlement.
Expert:  Ely replied 2 years ago.
Angela,

Ah, thank you. Do you mean will it hurt you to seek a mediated agreement as to settlement of the assets before going to Court?
Customer: replied 2 years ago.
No I mean the fact that I'm earning a good salary, even though I havent throughout most of the marriage- and he is till earning quite a bit more... will that hurt my chances of being awarded any financial help from him to get resettled?
Expert:  Ely replied 2 years ago.
Angela,

Ah - I see. Apologies for the misunderstanding.

Honestly? Likely. Alimony is based on (1) need and (2) continuing at least (for a while) to maintain the same lifestyle.

If your income can do this, then the Court is less likely to award a high amount. Apologies, I am being honest here.

While the legal system tries to be inclusive of every possibility, sometimes people have limited avenues to seek relief. Please understand that this is not the expert’s fault. Surely, you prefer that I tell you the truth rather than what you wish to hear. Please keep this in mind when rating my answer. I understand that this may not be easy to hear, and I empathize.

IMPORTANT INFO: Please use REPLY TO EXPERT to keep talking, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89094
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 6 other Family Law Specialists are ready to help you

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Ely
Ely
Counselor at Law
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Private practice with focus on family, criminal, PI, consumer protection, and business consultation.